Course Syllabus

Cyberlaw and Cyberpolicy

 

Please note that both readings and assignments are subject to some change.

 

Readings: There will be a number of readings of Supreme Court cases, various government reports, other papers, James Grimmelmann, Internet Law: Cases and Problems, Version 7.0, and Cathy O'Neil, Weapons of Math Destruction.

The Grimmelmann text, which is required, is available for download only at Semaphore Press. I encourage you to read about Semaphore Press's publishing approach on its website. The publisher has a suggested price of  $30 for the online version, and I urge you to pay that for the book.

Important Announcement: The Jewish holidays of Rosh Hashonah and Yom Kippur fall early in the fall academic calendar. As a result, there will be no classes on September 10 and September 19. There will be an extra make-up class on Thursday September 6 at 7-8:15 in Mugar 200 (in the Fletcher building).

Assignments:  

• Instead of class on September 19 you will study a simple technology, use it, and submit a two-page briefing on the technology. This will be due on September 17. This will count 5% of the grade.
• On October 18 at 3 pm, Judy Brewer of MIT will be giving the Computer Science Department's colloquium on accessibility (title TBA). Either attend the lecture or, if you're unable to do so, watch the video of the talk (I will email out the link for the video after the talk). Write a one-page essay—no citations needed in this one—on how your understanding of how law/policy governing accessibility online should be has changed as a result of this talk. This will be due October 22 and will count 5% of the grade.
• There will be a second short paper due October 29; topic TBA. This will count 15% of the grade.
• Finally you will be divided into different constituencies to present and/or vote on a current issue in cyberlaw and cyberpolicy. This project has two parts. First you will prepare individual five-page briefing papers; these are due on November 29. These papers will form the basis of your group's two-page briefing document, which will be shared with the class on December 2. Presentations will happen during class on December 3 and 5. The individual briefing papers will count 20% of the grade and presentation will be 10% of the grade.
• Class participation is worth 15% of the grade. The course has extensive readings that are an integral part of the course; I expect you to read and reflect on the readings.
• There will be a final, which will count 30% of the course grade.

 

Students with Documented Disabilities:

In accordance with federal and state law, Tufts University provides reasonable accommodations to students with documented disabilities.  If you believe you require an accommodation, e-mail accessiblity@tufts.edu  or Catherine.Flynn@tufts.edu.

Office Hours:

Tuesdays: 11:00-12:00, Mugar 251B* (No office hours September 11; extra office hour September 12 11:15-12:15 in Mugar).

Thursdays: 1:30-2:30. Halligan 241*

* The Fletcher and AS&E communities have different mores for office hours. Thus my office hours in Mugar are by appointment; appointments can be made by signing up on the list on my office door or by contacting my admin, Tina Cottle (tina dot cottle at tufts dot edu), while my office hours at Halligan are on a first-come first served basis.

 

Syllabus

Technology and Governance

 

September 5: Introduction: What is this course about? How is law in cyberspace different from law elsewhere? Or is it?

Readings:

• None.

 

September 6:  What is the Internet? The architecture of packet-based networks.

Note that this is an extra class occurring instead of the class on September 10; it occurs on Thursday September 6 7-8:15, Mugar 200 (in the Fletcher building).

Readings:

• Frank Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chicago Legal Forum.
  
• Grimmelmann: pp. 17-27, 29-39, 40-49.
• Rus Shuler, How Does the Internet Work?, 2002.

 

September 10: No class.

 

September 12:  Different architectures (client-server, peer-to-peer, cloud) and the legal implications.

 

September 17: Who governs the Internet? What does that mean? How is it done?

Readings:

• Malte Ziewitz and Ian Brown, A Prehistory of Internet Governance, pp. 18-21 and 23-30.
• Laura DeNardis, The Emerging Field of Internet Governance, 2014.

 

September 19: No class.

 

September 24: Jurisdiction

Readings:

• Grimmelmann, pp. 55-62, 66-68, 72-80.
• Jennifer Daskal, Microsoft Ireland, the CLOUD Act, and International Lawmaking 2.0, Stanford Legal Review, May 2018.

 

September 26: International treaties and agreements on investigations (Convention on Cybercrime, MLATs, CLOUD Act).

Readings:

• Budapest Convention on Cybercrime, 2001.

 

Cyberspace and the First Amendment

October 1: The First Amendment: free speech.

Readings:

• First Amendment.
• Fourteenth Amendment.
• New York Times v. Sullivan, 376 U.S. 254 (1964).
• For those who have never studied encryption: Whitfield Diffie and Susan Landau, Privacy on the Line: The Politics of Wiretapping and Encryption, 1998, chapter 2.
• Grimelmann, pp. 123-128,134-140.

 

October 3: The First Amendment: regulating speech on the Internet: Part I.

Readings:

• Grimmelmann, pp. 180-181.
• EFF, The Importance of Section 230 of the Communications Decency Act.
• Danielle Citron, Addressing Cyber Harrassment: An Overview of Hate Crimes in Cyberspace, Journal of Law, Technology, and the Internet, Vol. 6, 2015.
• Daphne Keller, Internet Platforms: Observations on Speech, Platforms, and Money,  A Hoover Institution Essay.

 

October 9: The First Amendment: regulating speech on the Internet: Part II.

Readings:

• Tim Wu, Is the First Amedment Obsolete?, Columbia Law Public Research Paper No. 14-573, Jan. 13, 2018.
• Why Tucows Doesn't Take Down Domains for Website Content, Feb. 13, 2018.
• Henry Farrell, Alex Jones was just banned from YouTube, Facebook, and iTunes. Here's how he managed to survive until now, Washington Post, August 6, 2018.
• Jill Lepore, The Hacking of America, New York Times, September 14, 2018.

 

October 10: The First Amendment: the right to be anonymous.

• Julie E. Cohen, “A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace,” Connecticut Law Review, Vol. 98. (1996).
• Grimmelmann, pp. 254-255.

 

Cyberspace and the Fourth and Fifth Amendments

 

October 15: Protecting privacy in practice*

Readings:

• Ieaun Jolly, Data protection in the United States: overview (as of July 1, 2017), sections on:  What national laws regulate the use and collection of personal data?, To whom do these laws apply? What data is regulated?, What acts are regulated?, What is the jurisdictional scope of the regulations?
• Danielle Citron, The Privacy Policymaking of States Attorneys General, Notre Dame Law Journal, pp. 747-771 and 811.

* As there is also a course on privacy, I will only touch briefly on privacy in Cyberlaw and Cyberpolicy; I'll focus on who has the power to regulate and protect privacy rather than on specific laws relating to privacy.

 

October 17: What's a search? Communications and devices.

Readings:

• Fourth Amendment
• Grimmelmann, pp. 207-210.
• Brandeis dissent, Olmstead v. United States, 477 U.S. 238 (1928).
• Katz v. United States, 339 U.S. 347 (1967).
• Smith v. Maryland, 442 U.S. 735 (1979).
• Kyllo v. United States, 533 U.S. 27 (2001).
• The following readings are optional:
• United States v. Jones, 132 U.S. 945 (2012).
• Riley v. California, 134 U.S. 2473 (2014).
• Richard Thompson II, Congressional Research Service, Digital Searches and Seizures: Overview of Proposed Amendments of the Rules of Criminal Procedure, September 8, 2016.
• Carpenter v. United States, Supreme Court of the United States, June, 2018, Syllabus (only).
• Grimmelmann,  pp. 250-251.

 

October 22: Wiretap Law: Foreign Intelligence collection—and untangling a confusion of laws.

Readings:

• Grimmelmann, pp. 236-240, 242-245, 252-253.
• United States v. United States District Court, 407 U.S. 297 (1972).
• Grimmelmann, pp. 261-272.

 

October 24: The Crypto Wars: Guest: James Baker, former FBI General Counsel

Readings:

• Steven M. Bellovin, Matt Blaze, Sandy Clark, and Susan Landau, Going Bright: Wiretapping without Weakening Communications Infrastructure, IEEE Security and Privacy, Vol. 11, No. 1, January/February 2013.
• James Comey, Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?, speech at Brookings Institute, October 16, 2014.
• Harold Abelson, Steven M. Bellovin, Josh Benaloh, Matt Blaze, Whitfield Diffie, John Gilmore, John Gilmore, Matthew Green, Susan Landau, Peter G. Neumann, Ronald L. Rivest, Jeffrey I. Schiller, Bruce Schneier, Michael Specter, Daniel J. Weitzner, Keys Under Doormats: mandating insecurity by requiring government access to all locked phones and devices, Journal of Cybersecurity, November 17, 2015.
• Susan Landau, The Real Security Risks of the iPhone Case, Science, Vol. 352, Issue 6292, June 17, 2016.
• White House, Vulnerabilities Equities Policy and Process for the United States Government (unclassified), November 15, 2017.

 

Copyright in the online world (a very brief look)

October 29: Copyright challenges (including derivative works and first sale).

Readings:

• Pam Samuelson, Copyright and Freedom of Expression in Historical Perspective, Journal of Intellectual Property Law, Volume 10, March 2003.
• Jessica Litman, Real Copyright Reform, 2010, Section 1.
• Grimmelmann, pp. 377-379, 399-403.

 

October 31: Copyright "solutions."

Readings:

• Creative Commons, What is Creative Commons and Licenses.
• Pamela Samuelson, Digital Rights Management {and, or, vs.} the Law, Communications of the ACM, Vol. 46, Issue 4 (April 2003).
• Larry Magid, What are SOPA and PIPA And Why All the Fuss?, Forbes, January 18, 2012.

 

Cybersecurity, Law, and Policy

November 5: Cybersecurity, cyberexploits, cyberattacks, and attribution

Readings:

• William Lynn, Defending a New Domain, Foreign Affairs, September/October 2010.
• D. D. Clark and S. Landau, Untangling Attribution, Harvard National Security Journal, Vol. 2, Issue 2 (2011).
• Sasha Romanosky, Private-Sector Attribution of Cyberattacks: A Growing Concern for the U.S. Government?, Lawfareblog, December 21, 2017.

 

November 7:  What constitutes cyberwar?

Readings:

• Thomas Rid, Cyber War Will Not Take Place, Journal of Strategic Studies, October 5, 2011.
• Kim Zetter, An Unprecedented Look at Stuxnet, the World's First Digital Weapon, Wired, November 3, 2014.
• C. Robert Kehler, Herbert S. Lin, Michael Sulmeyer, Rules of engagement for cyberspace operations: a view from the USA, Journal of Cybersecurity, February 28, 2017.
• Andy Greenberg, How an Entire Nation Became Russia's Test Lab for Cyberwar, Wired, June 20, 2017.
• Reid Standish, Russia's Neighbors Respond to Putin's 'Hybrid War', Foreign Policy, October 12, 2017.

 

November 14: Short lecture on the Council of Europe Cybercrime treaty by Asaf Lubin, plus time to work on your group projects.

 

November 19: Hacking Back (including the Law of Armed Conflict); Guest: Steve Bellovin, Columbia University

Readings:

• Grimmelmann, 327-329, 330-332.
• Nicholas Schmidle, The Vigilantes Who Hack Back, New Yorker, May 7, 2018
• Global Commission on the Stability of Cyberspace, Additional Note to the Norm Against Offensive Cyber Operations by Non-State Actors, November 2018.
• Jim Christy, Legal Hack-Back, November 15, 2017.

 

New Challenges

November 26: The Internet and national security: responding to stress

Readings:

• Jack Goldsmith and Stuart Russell, Strengths Become Vulnerabilities: How a Digital World Disadvantages the US in International Relations, 2018.
• Jack Goldsmith, The Failure of Internet Freedom, 2018.
• David Kaye, The Limits of Supply-Side Internet Freedom, 2018.

 

November 28: Machine Learning and Discrimination

Readings:

• Cathy O'Neil, Weapons of Math Destruction, 2016.
• Bethan Cantrell, Javier Salido, and Mark Van Hollenbeke, Industry Needs to Embrace Ethics: Here's How it Could be Done, Workshop on Data and Algorithmic Transparency, 2016.

December 3 and 5: Class presentations

 

December 10: Summing Up