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Losing Track of the Tracking Device Statute

You, a first-year law student taking your Crim Pro exam, quickly scan the first question: “Can a cell phone be a tracking device?” Your initial reaction – must be a trick question, right? Everybody knows that snitch in your purse faithfully follows you wherever you go. But you’ve been around law school long enough to know that what’s true in fact may not be true as a matter of law. So you check the statutory definition of ‘tracking device’ helpfully reprinted down the page: Read more about Losing Track of the Tracking Device Statute

The CJEU’s new filtering case, the Terrorist Content Regulation, and the future of filtering mandates in the EU

This blog post will briefly discuss the ruling’s relevance for future EU legislation, and in particular for the Terrorist Content Regulation. TL;DR: Glawischnig-Piesczek does not discuss when a filtering order might be considered proportionate or consistent with fundamental rights under the EU Charter. It only addresses the eCommerce Directive, holding that a monitoring injunction is not “general” — and thus is not prohibited under the Directive — when it “does not require the host provider to carry out an independent assessment” of filtered content. This interpretation of the eCommerce Directive opens the door for lawmakers to require “specific” machine-based filtering. But it seemingly leaves courts unable to require platforms to bring human judgment to bear by having employees review and correct filters’ decisions. That puts the eCommerce Directive in tension with both fundamental rights and EU lawmakers’ stated goals in the Terrorist Content Regulation. Read more about The CJEU’s new filtering case, the Terrorist Content Regulation, and the future of filtering mandates in the EU

Banning Strong Encryption Does Not Mean Catching Criminals. It Only Makes You Less Safe from Them.

On November 17, 2019, Reuters reported that the Federal Bureau of Investigation (FBI) had drafted a resolution for the international police organization, Interpol, that condemned strong encryption and called for encryption backdoors. Read more about Banning Strong Encryption Does Not Mean Catching Criminals. It Only Makes You Less Safe from Them.

Tool Without A Handle: “Book Review: Tools and Weapons”

Tool Without A Handle: “Book Review: Tools and Weapons”

“Since the dawn of time, any tool can be used for good or ill. Even a broom can be used to sweep the floor or hit someone over the head. The more powerful the tool, the greater the benefit or damage it can cause. While sweeping digital transformation holds great promise, the world has turned information technology into both a powerful tool and a formidable weapon” --- from Tools and Weapons Read more about Tool Without A Handle: “Book Review: Tools and Weapons”

More Questions about the CLOUD Act and the US-UK Agreement - Can the US direct UK Providers to Wiretap their Users in Third Countries?

In my first blog post on the CLOUD Act and US-UK Agreement, I noted that the wiretap provision of the CLOUD Act - as opposed to the stored content provisions resolving the Microsoft Ireland case - hardly had been discussed, but it was sure to raise concerns in those third countries where users were targeted by US or UK law enforcement. Read more about More Questions about the CLOUD Act and the US-UK Agreement - Can the US direct UK Providers to Wiretap their Users in Third Countries?

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

The implementation of Art. 17 of the Copyright in the Digital Single Market (C-DSM) Directive is ongoing. In particular, the multi-stakeholder dialogue under Art. 17(10) of the C-DSM Directive is happening as I write. To the end of promoting public interest in the implementation process, a group of European academics (including João Quintais, Stef van Gompel, P. Bernt Hugenholtz, Martin Husovec, Bernd Justin Jütte, Martin Senftleben and myself) has drafted a document with recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive. Read more about Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

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