Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email

The scourge of email spam is almost forty years old, and, yet, it does not appear to be disappearing. In fact, spam has expanded to other ubiquitous Internet platforms including social media Web sites. It seems, then, that the many state anti-spam statutes have been unsuccessful in regulating the sending of unsolicited commercial email, but not for lack of trying. This article examines the First Amendment challenges to state anti-spam laws.     

Humans forget,machines remember: Artificial intelligence and the Right to Be Forgotten

This article examines the problem of AI memory and the Right to Be Forgotten. First, this article analyzes the legal background behind the Right to Be Forgotten, in order to understand its potential applicability to AI, including a discussion on the antagonism between the values of privacy and transparency under current E.U. privacy law. Next, the authors explore whether the Right to Be Forgotten is practicable or beneficial in an AI/machine learning context, in order to understand whether and how the law should address the Right to Be Forgotten in a post-AI world. The authors discuss the technical problems faced when adhering to strict interpretation of data deletion requirements under the Right to Be Forgotten, ultimately concluding that it may be impossible to fulfill the legal aims of the Right to Be Forgotten in artificial intelligence environments. Finally, this article addresses the core issue at the heart of the AI and Right to Be Forgotten problem: the unfortunate dearth of interdisciplinary scholarship supporting privacy law and regulation.     

"彩信"手机侵犯隐私权之法律探讨

2002年10月1日中国移动公司正式推出融合彩色图像、声音、文字于一体的"彩信"业务,即媒体短消息业务(MultimediaMessageService,"MMS")。该业务使用户能用"彩信"手机拍摄照片,通过"MMS"网络系统将照片以短消息的形式发送到其他"彩信"手机上或者发送到互联网上。信息获取和传输技术创造性的革新将人们的生活私事进一步公开化地暴露在他人面前。"彩信"手机和业务的出现对隐私权的保护提出了新的课题。通过分析"彩信"手机侵权方式的特点、性质和我国立法现状提出了一些思考。     

The Contentious American Debate: The First Amendment and Internet-based Hate Speech

This essay reviews the debate over what constitutes hate speech and whether or not such speech is protected by the American First Amendment. First, the concept of white racialism and white supremacy is defined and illustrated. Then after a brief discussion of the legal debate, the nature and problematic definition(s) of hate speech is presented. The unique speech environment of the internet is reviewed alongside attempts to limit and censor topics available on the internet. The arguments for and against restricting first amendment protection are discussed, with a focus on Michael Israel's five criteria for withdrawing first amendment protections. The work concludes with a discussion of the difficulty in constraining discourse on the internet.     

The Digital Millennium Copyright Act of 1998: A Proposed Amendment to Accommodate Free Speech

Title II of the Digital Millennium Copyright Act of 1998 limits liability for copyright infringement for online service providers if they remove from their services material posted by users that copyright holders allege infringes on their rights. This article argues that the Title provides too much incentive to OSPs to remove the material, creating an imbalance in the "fair-use" tradition of copyright law and threatening freedom of speech. The article suggests that the law be amended to require that copyright holders prove infringement before OSPs are made liable for infringement.     

Mosaic Theory and Cyberharassment: Using Privacy Principles to Clarify the Law of Digital Harms and Free Speech

The Supreme Court of the United States, in the 2012 case United States v. Jones, laid a jurisprudential foundation for using mosaic theory to identify and address harms caused when innocuous bits of information are aggregated and used to invade the privacy of a targeted individual. Although mosaic theory has been applied almost exclusively in Fourth Amendment privacy cases, information mosaics can be used to facilitate online harassment. However, courts have not articulated frameworks for recognizing informational harms caused by mosaics. Additionally, although state cyberharassment laws exempt constitutionally protected informational uses from prosecution, neither state legislatures nor courts have articulated the extent of such protected activities in the cyberharassment context. Mosaic theory provides a useful theoretical and heuristic lens for understanding the limits of informational uses and harms in the cyberharassment context. Using the lens of mosaic theory, this article explores the ways information mosaics can be used to harass targeted individuals. The article concludes that states should pursue incremental modifications to their cyberharassment laws to address the harms caused by persistent, intentional, targeted uses of information mosaics against targets and that they better articulate frameworks for understanding which information-sharing activities are exempt from prosecution.     

搜查与隐私权保护——加拿大宪法与美国宪法第4修正案之比较

<加拿大权利与自由宪章>第8条赋予了公民反对不合理的搜查和扣押的权利.与美国宪法第4修正案的发展历程类似,经由加拿大最高法院的判例解释,<宪章>第8条确立了隐私权的宪法保护.基于对美国宪法判例的批判和借鉴,<宪章>第8条下的隐私权在判断标准、保护范围方面体现了本国特色.第8条下隐私权具备的丰富内涵,不仅得益于加拿大最高法院确立的隐私权旨在促进的诸项基本价值,也与加拿大较为宽泛的非法证据排除规则有关.     

Protecting Children While Silencing Them: The Children's Online Privacy Protection Act and Children's Free Speech Rights

In 1998, Congress passed the first law protecting the privacy of individuals on the Internet. The Children's Online Privacy Protection Act (COPPA) restricts the online collection of personal information from children aged 12 or younger. Under the law, Web sites that maintain chat rooms directed at children must either condition a child's participation on the consent of a parent or guardian or monitor the chat room and censor references to personal information. This article examines whether COPPA's chat room restrictions infringe on the free speech rights of children. The examination finds that aspects of the chat room restrictions are constitutionally suspect because it is questionable whether the parental consent requirement is narrowly tailored.     

Violence as Obscenity: Offensiveness and the First Amendment

Many efforts have been made to restrict minors' access to violent media content basing the definition of the content to be restricted on the legal definition of obscenity, which requires the content to be offensive. Without exception, such restrictions have been found to violate the First Amendment, partly because the laws have defined the violence to be restricted with reference to its offensiveness, while the purpose of the laws has been to protect children from the harms believed to be caused by exposure to such content. This has created a problematic lack of fit between the content to be restricted and the purpose of restrictions. This article examines whether restricting minors' access to offensive violent media content to protect them from its offensiveness makes it any more likely such restrictions will survive First Amendment scrutiny.     

Free Speech Meets the Publicity Tort: Transformative Use Analysis in Right of Publicity Law

The intersection of intellectual property law and First Amendment concerns has become increasingly contested. The right of publicity has proven particularly difficult to reconcile with free speech values. Recently, some courts have begun importing a “transformative use” approach from copyright law to reconcile tensions between publicity rights and free expression. This article analyzes the problems with the transformative use doctrine and suggests the outlines of an alternative approach.     

论体液证据的收集与隐私权保护

在讲究科学办案的今天．体液证据在诉讼中越来越重要．但体液证据的收集却容易侵害犯罪嫌疑人的隐私权。在诉讼领域如何寻求收集体液证据与隐私权保护的衡平,是本文探讨的重点并提出了立法建议。     

突发公共卫生事件中位置数据的披露:基于健康权和隐私权的视角

位置数据披露在防控新冠病毒(COVID-19)等传染病期间在国家、公共卫生机构及个人层面具有三重价值、成效显赫;但也暴露出健康权与隐私权之间的内在张力.全球范围内存在三种位置数据披露模式:一是模糊地理数据披露模式,即向所有公众公开仅涉及概括性、脱敏性的位置数据信息;二是对特定人群信息披露模式,针对可能的密切接触者等特定...     

如何打造具有法理合理性的刑事诉讼法——审思2018年刑事诉讼法修正案

2018年刑事诉讼法修正案及时回应了我国当下监察体制改革和司法改革,对我国刑事诉讼制度的发展具有积极意义。然而,从法理合理性角度审视,修正案的一些内容存在不足,主要是修法内容欠缺必要的法理合理性。这源于实用主义立法取向下过度注重修法目的合理性。未来刑事诉讼立法应当认真对待法理合理性,既要全面考虑法律体系的法理合理性问题,又要统筹考虑刑事诉讼法内部的法理合理性问题,还应通过科学的立法技术将法理合理性融贯于相关法律规定之中。     

First Amendment Showdown: Intellectual Diversity Mandates and the Academic Marketplace

Once described as a quintessential marketplace of ideas by the Supreme Court of the United States, the academic marketplace has been criticized recently for institutionalizing a left-leaning ideology within its curriculum and academic discourse. As a result, national activists and organizations have been calling on state legislatures and university administrators to adopt policies and report on steps taken to encourage intellectual diversity and protect political and cultural minorities from faculty bias and academic retribution in the classroom and other university settings. But who would win a constitutional showdown between the academy and those seeking to infuse academic discourse with alternative viewpoints? Based on an analysis of the First Amendment concerns at stake in this ongoing controversy, this article concludes that university administrators should have the upper hand in such a constitutional challenge given the specific characteristics and selective nature of the academic marketplace.