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Why is the Internet Like a Cell Phone? Carpenter v. U.S

If your cell phone is on, your location is known, tracked and recorded, whether you are in your home or in public. As you move around, your location history is created and stored by the carrier, numerous applications on the device, and potentially even the manufacturer of the device or operating system provider. Your consent to capture this information, whether rough location or very granular,  may be tacit, inherent in the application’s usage, or freely given when you activate, install or operate the device.

What Does the New CDA-Buster Legislation Actually Say?

Alarm bells are sounding around the Internet about proposed changes to one of the US’s core Intermediary Liability laws, Communications Decency Act Section 230 (CDA 230). CDA 230 broadly immunizes Internet platforms against legal claims based on speech posted by their users. It has been credited as a key protection for both online expression and Internet innovation in the US. CDA 230 immunities have limits, though. Platforms are not protected from intellectual property claims (mostly handled under the DMCA) or federal criminal claims.

The Crypto-Circus comes to town -- again

As part of it's 50th anniversary celebrations, the Australian university where I did graduate work recently interviewed me on a range of cybersecurity topics. At the time of our chat, Australian Prime Minister Turnbull had just proclaimed that "the laws of Australia prevail in Australia, I can assure you of that.

Google's US Challenge to the Canadian Global Delisting Order

In its Equustek ruling in June, the Canadian Supreme Court held that Google must delete search results for users everywhere in the world, based on Canadian law. Google has now filed suit in the US, asking the court to confirm that the order can’t be enforced here. Here’s my take on that claim.

“Tool Without a Handle: Reflections on 20 years from Reno v. ACLU”

On 26 June 1997, in Reno v ACLU, the US Supreme Court decided the fate of the Communications Decency Act (“CDA”), insofar as it criminalized the intentional transmission of "obscene or indecent" messages or information.  In doing so, the Court made not only a finding that this provision of the CDA violated the 1st Amendment, but applied an approach to Internet cases with clear implications for cases the Court faces today.

Reno established that it is essential the Court recognize differences between the measured pace of judge-made law and the blistering pace of technology’s evolution, a point that is still cited by the Court today. And, it identified that the capabilities and availability of the tools at issue have an important role to play in the constitutional analysis. As the Court continues to address Internet and technology-related constitutional cases, the importance of considering the capabilities of Internet tools may well be the most impactful legacy of Reno.

 

 

The Cross-Border Data Fix: It’s Not So Simple

The House Judiciary Committee held a hearing yesterday on cross-border data requests, featuring testimony from the Department of Justice, the U.K. government, Google, the Center for Democracy and Technology, state law enforcement, and Professor Andrew Woods. Everyone recognizes the problem: law enforcement outside the U.S. can’t get data for their legitimate investigations from U.S.

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