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Twisted Tracking Law Precedent Badly Needs Straightening Out

On December 16, 2019 the Supreme Court denied cert in Ackies v. United States, the ‘precise location’ warrant case from the First Circuit. For reasons I outlined here and here, that appellate court decision was a train wreck of factual misconception and statutory misconstruction. Read more about Twisted Tracking Law Precedent Badly Needs Straightening Out

Intermediary Liability 101: An Update for 2020

I've had a lot of positive feedback for the Intermediary Liability 101 slides I shared back in 2018, so I thought I'd post these updated ones now. They are based on a deck I presented to a European policymaking audience last month. Their focus tilts toward European examples -- but many of the issues captured here are universal. This version also has a longer section toward the end listing emerging issues and ideas (again, with a European lens).  Read more about Intermediary Liability 101: An Update for 2020

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

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