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.     

刑事诉讼法再修改与被追诉人财产权的保护

强化对被追诉人财产权利的保护是当代中国刑事诉讼制度与实践的应然内容。当下的刑诉法修正案虽然从价值理念、制度设计与技术规范层面对此展开初步调整,但其价值取向的明确度及对现实需求的回应度尚显不足。未来刑事诉讼法修改应综合考量中国社会的整体变迁、域外法治发达国家司法经验,进一步观照被追诉人的财产权利,建构更契合人权保障要求的程序性保障机制。     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

Son Of CDA: The Constitutionality Of The Child Online Protection Act Of 1998

In 1998, Congress passed a second law to regulate online content in the name of protecting children. Although the Child Online Protection Act is arguably a more narrowly tailored approach to protecting children from online indecency than the Communications Decency Act of 1996, the COPA still suppresses a large amount of speech that adults have a constitutional right to receive. This article explains the two laws, analyzes how courts have treated them and finds that while there are slight differences between the two laws, the courts have thus far held that these differences are insignificant compared to their shared constitutional defects. The article recommends that Congress stop attempting to enact laws that technology and parental control make unnecessary and that would harm freedom of expression.     

Unmasking Jane and John Doe: Online Anonymity and the First Amendment

When individuals turn on the television, listen to the radio, or purchase newspapers, they are not forming contractual relationships. Yet, almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users”—online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.     

Democratic Governance,Self-Fulfillment and Disability: Web Accessibility Under the Americans With Disabilities Act and the First Amendment

The Americans with Disabilities Act celebrated its twenty-fifth anniversary in 2015. Enacted by Congress and signed into law by President George H.W. Bush, the ADA was designed to ensure that people with disabilities are given “independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.” The ADA defines the kinds of public and private spaces that must provide access and accommodations to the disabled. Missing from that list, because of the ADA's timing, is the Internet, effectively shutting the disabled out of the rich marketplace of ideas online. This article examines both the case law surrounding this omission and delays by the executive and legislative branches in extending the ADA to the Internet. It argues that making the Internet a “place of public accommodation” under the ADA is supported by First Amendment principles of democratic governance and self-fulfillment.     

修改《证券法》与保护券商合法权益

建议在我国证券法中增加有关基本概念的定义性规定,有关证券监督的综合协调管理制度,将证券监督管理事宜委托证券业协会,证券专业调解、仲裁制度等四方面内容.     

青少年在线权利的法律保护

不良信息对青少年身心健康的侵蚀是不容忽视的。网络虚拟世界、网络社会对真实世界、现实社会的依附性决定了人类对网络虚拟世界、网络社会具有控制和规范的能力。就青少年而言,他们有获得有益于其身心健康、文明向上的精神产品的权利;就社会而言,为青少年提供文明、健康的精神产品是社会的义务和责任。而法律介入是保护青少年在线权利的必由之路。     

The Data Protection (Amendment) Act, 2003: the Data Protection Directive and its implications for medical research in Ireland

Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data has been transposed into national law and is now the Data Protection (Amendment) Act, 2003. The Directive and the transposing Act provide for new obligations to those processing data. The new obligation of primary concern is the necessity to obtain consent prior to the processing of data (Article 7, Directive 95/46/EC). This has caused much concern especially in relation to 'secondary data' or 'archived data'. There exist, what seem to be in the minds of the medical research community, two competing interests: (i) that of the need to obtain consent prior to processing data and (ii) the need to protect and foster medical research. At the same time as the introduction of the Act, other prior legislation, i.e. the Freedom of Information Act, 1997-2003, has encouraged candour within the doctor-patient relationship and the High Court in Ireland, in the case of Geoghegan v. Harris, has promulgated the 'reasonable-patient test' as being the correct law in relation to the disclosure of risks to patients. The court stated that doctors have a duty to disclose all material risks to patients. The case demonstrates an example of a move toward a more open medical relationship. An example of this rationale was also recently seen in the United Kingdom in the House of Lords decision in Chester v. Afshar. Within the medical research community in Ireland, the need to respect the autonomy of patients and research participants by providing information to such parties has also been observed (Sheikh A. A., 2000 and Irish Council for Bioethics, 2005). Disquiet has been expressed in Ireland and other jurisdictions by the medical research communities in relation to the exact working and meaning of the Directive and therefore the transposing Acts (Strobl et al). This may be due to the fact that, as observed by Beyleveld "The Directive makes no specific mention of medical research and, consequently, it contains no provisions for medical research as an explicitly delineated category." (Beyleveld D., 2004) This paper examines the Irish Act and discusses whether the concerns expressed are well-founded and if the Act is open to interpretation such that it would not hamper medical research and public health work.     

权利之间的界限——以美国宪法第一修正案为中心

表达自由与其他宪法权利的规范语句只是作为一种预设存在,它们在水平效力的延展上都是有限度的,彼此之间也是有界限的,所谓的界限主要通过对于权利范围的限制来体现,而在对权利作限制时,其核心部分不应受到憾动。在个案情形下,任何一方的胜出,都会对另一方构成限制,而任何一清晰的主张完全可能会被确认,也完全有可能会被驳倒,指望在两个权利之间划定一条什么固定不变的界限好方便断案是不现实的,权利之间的界限有赖于法益衡量。     

The Missing Child in Child Protection: The Constitutional Context of Child Maltreatment From Meyer to DeShaney

This paper employs DeShaney v Winnebago County (1989) as an illustration of how the law has lost sight of the interests of children in cases of child maltreatment. The historical constitutional context of child maltreatment – balancing state's interests and parental rights – is discussed. The opinions in DeShaney and two of the major criticisms of the majority's opinion – the action versus inaction dichotomy and the restrictive interpretation of the special relationship doctrine – are then considered. Legislatively created entitlements to protection are suggested as an avenue of relief for injured children which also necessitates a focus on the rights and interests of children.     

侵犯肖像权之加害行为的认定及肖像权的保护原则

肖像权加害行为的认定是肖像权侵权案件处理的难点.肖像权属于私权,权利人得依其意思自治.如何限制肖像权才具有正当性,无法设置一般的规则,需要根据具体情形判断.将肖像分为不同类型分别给予不同的保护是此原则的体现.     

公民权视域下农民工权益保护的社会政策支持

农民工是中国城市中一个特殊的社会群体,由于目前中国社会制度与政策的因素,他们在城市中不能与城市居民享有同等的政治、经济及社会权利,是典型的弱势群体.从公民权视角提出农民工权益保护的社会政策支持,有利于从根本上实现农民工的城市融入,消除社会排斥.维护农民工的公民权,就必须建立城乡统一的户籍管理制度、城乡平等的劳动就业政策、分类分层的劳动社会保障政策、农民工子女教育政策和住房保障政策.     

Abortion in Israel: Community, Rights, and the Context of Compromise

In contrast to American understandings of abortion as a uniquely tragic dilemma, the Israeli abortion issue is a tangential controversy in a larger debate over the relationship between the state's national and democratic identity. The divergent paths of abortion politics in Israel and the United States reflect important differences in underlying religious doctrines, geographical size, feminist ideologies, and the immediacy of other social cleavages. More profoundly, the two abortion stories are the product of distinct understandings of the mutual obligations between citizens and their state and of the relationship between individual and collective rights and duties. While these differences may account for the capacity of Israeli activists on both sides to forge pragmatic compromises, the stability of these policies is uncertain both because of changing Israeli priorities and the import of American conceptions of the abortion dispute.