JOLT Digest

The Harvard Journal of Law & Technology recently released its Fall 2011 issue, now available online.  Sonia K. McNeil, author of “Privacy and the Modern Grid” has written an abstract of her article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Privacy and the Modern Grid
Sonia K. McNeil

The American electrical grid is in bad shape. Because of chronic underinvestment in research and development, a digital nation now relies on an infrastructure created before the invention of microprocessors that is beginning to show its age. Power quality problems and system disturbances cost the United States nearly $150 billion each year, regional blackouts aggravate and endanger millions of residents, and structural insecurities tempt hackers and terrorists around the globe.

To address these problems, the modern grid is being transformed from an outmoded, centralized network dominated by energy producers to a flexible, decentralized system that is more secure, more reliable, and better able to respond to and interact with consumers. The updated “smart grid” will permit “a two-way flow of electricity and information” in near-real time, creating an adaptive, interactive energy matrix. For consumers, the most visible part of the smart grid will be “smart meters,” advanced electrical meters that collect highly granular data on individual electricity consumption and allow users to monitor and remotely control their electrical use in response to fluctuating energy prices. At the level of an individual home, the goal is to use data to encourage consumers to conserve energy by showing them its cost as they consume it, rather than days or weeks later in an energy bill. System-wide, this information will be harnessed to spur economic growth, conserve the environment, increase electrical service reliability, strengthen national security, and develop derivative technologies.  (more…)

Written by Laura Fishwick
Edited by Adam Lewin
Editorial Policy

Introduction

The most recent U.S. Supreme Court case to address the legality of school-imposed punishment for student expression was more than forty years ago in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In that seminal case, the Supreme Court found that a state’s interest in maintaining its educational system can justify limitations on students’ First Amendment rights to the extent necessary to maintain an effective learning environment. Id. In Tinker, school officials suspended students for wearing black arm bands to protest the Vietnam War. Articulating the standard still used by courts today,[1] the Court held that a school may regulate student speech or expression if school officials can reasonably conclude that such speech caused or is likely to cause a “material and substantial” disruption to school activities. Id. at 513 (finding no substantial disruption because the protests were non-violent and did not interfere with class activities).

Tinker and subsequent Supreme Court cases have not addressed whether a school may regulate student speech that occurs off campus or online and is not connected to a school event, but that nonetheless causes disruption on campus or in the classroom. Further complicating the analysis of on campus, off campus, and online speech are additional factors such as the location where recorded activity takes place before it is posted online, and the location of the computer used to upload data onto the Internet. This comment explores the recent lower court decisions applying the Tinker standard to school-enforced limits on student speech made on the Internet. In cases of off campus or online speech, some courts have responded to the fact that Tinker involved on campus speech by requiring the school to show a substantial nexus between the speech and the school before applying Tinker. Beyond the nexus inquiry, courts move onto Tinker and examine the intensity of on campus discussions surrounding the expression, the burden the expression places on the administration, and whether the expression contains violent content.  (more…)

Written by Julia Mas-Guindal
Edited by Heather Whitney
Editorial Policy

I. Introduction

The doctrine of moral rights in copyright law has been a source of strain in domestic and comparative legal scholarship for decades. This strain is greater in the U.S. than in countries employing a continental legal system, where moral rights are widely recognized. This is because U.S. law and European law are built on different foundations: while for the U.S. Copyright Act the encouragement of economic investments is the top priority, continental countries prioritize protecting the artistic work and the creators. This fact has made it difficult for U.S. law to adequately account for moral rights, as I will argue in this comment. This issue is particularly acute in the realm of film. While the U.S. has made progress in establishing moral rights for paintings, drawings, sculptures and certain photographic images through the Visual Artist Rights Act of 1990 (“VARA”), the U.S. system continues to exclude filmmakers.

In this comment, I will review what moral rights are and compare the moral rights landscapes of the U.S. to those of continental countries. This will shed light on why filmmakers’ moral rights have been excluded and how exclusion is not inevitable, as other countries with bustling film industries, like India, have moral rights for filmmakers.

Finally, I will address the arguments made by the likes of producers and studios for why directors should not have moral rights. In the end, I argue for a way to meet the needs of producers and studios while also making room in U.S. law for recognition of moral rights in the filmmaking field.

(more…)

The Digest will be taking a short break from our regular coverage over the coming weeks as our Staff Writers go on holiday.

While we take our hiatus from regular coverage, we have the pleasure of re-introducing our Comments feature. Comments are longer opinion pieces on especially significant issues. These pieces are written entirely by members of our staff, on topics they believe warrant closer examination and study. From now until late January, we will publish one Comment every one to two weeks. We have great pieces this year and we hope you enjoy them!

We’ll be back sometime in January with our usual coverage.

We sincerely hope you’ve enjoyed our work this year!

- The Digest Staff

New Information about Carrier IQ Software Sparks Concerns that Wireless Carriers Have Violated Federal Anti-Wiretapping Laws

By Abby Lauer – Edited by Michael Hoven

Last month, a security researcher from Connecticut published information about a software program installed on some mobile smartphones that may be surreptitiously collecting data about how the phones are used. The software, called Carrier IQ and manufactured by a company of the same name, has been described as hard to detect, hard to remove, and programmed to run by default without the user’s knowledge. The scandal escalated last week when Senator Al Franken sent a letter to Carrier IQ asking for details about the software and the company’s business practices. Privacy analysts are concerned that the software violates the Federal Wiretap Act, as amended by the Electronic Communications Privacy Act, which forbids the intercepting of “wire, oral or electronic communication” and authorizes penalties of $100 per day for each violation. 18 U.S.C. §§ 2511, 2520. Other commentators have suggested that Carrier IQ may also violate the Computer Fraud and Abuse Act. 18 U.S.C. § 1030. So far, at least eight class action lawsuits have been filed against Carrier IQ and various device makers and wireless carriers.

Computerworld provides a general overview of the Carrier IQ software and the recent scandal. For a more detailed analysis of the legal issues, see Forbes, paidContent.org, and Talking Points Memo. (more…)