Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 26 journals)
Showing 1 - 9 of 9 Journals sorted alphabetically
Berkeley Technology Law Journal     Free   (Followers: 14)
Expert Opinion on Therapeutic Patents     Hybrid Journal   (Followers: 12)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 20)
IIC - International Review of Intellectual Property and Competition Law     Hybrid Journal   (Followers: 28)
International Data Privacy Law     Hybrid Journal   (Followers: 22)
International Journal of Intellectual Property Management     Hybrid Journal   (Followers: 30)
IP Theory     Open Access   (Followers: 12)
JIPITEC Journal of Intellectual Property, Information Technology and E-Commerce Law     Open Access   (Followers: 24)
John Marshall Journal of Information Technology & Privacy Law     Full-text available via subscription   (Followers: 7)
John Marshall Review of Intellectual Property Law     Free   (Followers: 10)
Journal of Copyright in Education & Librarianship     Open Access   (Followers: 33)
Journal of Data Protection & Privacy     Full-text available via subscription   (Followers: 6)
Journal of Intellectual Property Law & Practice     Hybrid Journal   (Followers: 30)
Journal of Intellectual Property Rights (JIPR)     Open Access   (Followers: 23)
Law, State and Telecommunications Review     Open Access   (Followers: 1)
Marquette Intellectual Property Law Review     Open Access   (Followers: 14)
Northwestern Journal of Technology and Intellectual Property     Open Access   (Followers: 8)
Propiedad Intelectual     Open Access   (Followers: 1)
Recent Patents on Anti-Cancer Drug Discovery     Hybrid Journal   (Followers: 2)
Recent Patents on Anti-Infective Drug Discovery     Hybrid Journal   (Followers: 1)
Reports of Patent, Design and Trade Mark Cases     Hybrid Journal   (Followers: 5)
Revista La Propiedad Inmaterial     Open Access  
The Journal of World Intellectual Property     Hybrid Journal   (Followers: 26)
Ticaret ve Fikri Mülkiyet Hukuku Dergisi     Open Access  
Web Journal of Current Legal Issues     Open Access   (Followers: 6)
World Patent Information     Hybrid Journal   (Followers: 17)
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Northwestern Journal of Technology and Intellectual Property
Number of Followers: 8  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1549-8271
Published by Northwestern University Homepage  [6 journals]
  • CARPENTER V. UNITED STATES AND THE SEARCH FOR THE FOURTH AMENDMENT

    • Authors: Lucas Henry Funk
      Abstract: Every Fourth Amendment analysis begins with the threshold inquiry of whether there has been a search or seizure. But answering what constitutes a “search” for the purposes of the Amendment has shown to be a difficult task. This is especially so in a world that is constantly changing by way of technology. Since the Amendment was written, both the capabilities of law enforcement as well as the private and commercial use of information have drastically transformed. For that reason, the doctrine has evolved substantially. Search criterion has shifted from physical trespass to reasonable expectations of privacy. Further, no such expectation exists in information that one knowingly reveals to a third party. But, in the Digital Age, these principles suffer from lack of clarity. Carpenter v. United States was the most recent confluence of the Fourth Amendment and technology, wherein the Supreme Court held that a search occurs when the Government obtains a user’s cell site location information. This note analyzes that case, as well as historic and contemporary search doctrine. Ultimately, this Note argues that search questions—even those implicating technology—are best answered by applying the Amendment as written.
      PubDate: Thu, 28 May 2020 10:01:34 PDT
       
  • STARTUPS AND INVESTORS AND TROLLS, OH MY!: HOW COMMERCIALIZATION PATENTS
           CAN BENEFIT STARTUP INNOVATION

    • Authors: Robert Chou
      Abstract: Venture-backed startups play a crucial role in innovation and advancing our technology. However, the development of secondary markets for patents and the proliferation of patent assertion entities starting in the early twenty-first century has made the patent ecosystem a difficult environment for startups to navigate. Startups face challenges that their more established counterparts do not. First, startups must rely heavily on external sources of funding and, as a result, many decide to file for patents early in their lifecycle to signal their value to potential investors. Second, patent assertion entities threaten startups with patent infringement suits at a disproportionately high rate, which disrupts startups’ productivity and diverts their limited resources. This Note explores the “vicious patent cycle.” The cycle begins when startups file patents to signal worth. Then, when 90% of these startups fail, they leave behind patents that grow the “patent thicket” as well as opportunities for patent assertion entities to stifle innovation. Together, these negative externalities exacerbate the challenge of building a new company. Unfortunately, the United States patent system is not well suited to put an end to the cycle. Thus, this Note introduces a solution for startups: the small business commercialization patent. The small business commercialization patent is a modified form of the commercialization patent introduced by Ted Sichelman but is tailored to meet the unique needs of venture-backed startups.
      PubDate: Thu, 28 May 2020 10:01:23 PDT
       
  • LESSONS FROM THE PAST: THE VENETIAN REPUBLIC’S TAILORING OF PATENT
           PROTECTION TO THE CHARACTERISTICS OF THE INVENTION

    • Authors: Stefania Fusco
      Abstract: In recent years, much discussion in patent law has revolved around granting tailored protection to provide better incentives to inventors in different industries and to increase patent quality. For example, the deliberations that led to the enactment of the Leahy-Smith America Invents Act (AIA) focused specifically on the role of the patent system in different industries as well as on modifying remedies and patent terms to reflect the needs of distinct technology sectors. Whereas in the literature there seems to be substantial agreement on the fact that tailored protection would be beneficial for the effectiveness of the patent system, there is no consensus with respect to which entity should be vested with the authority to produce tailored patent policies, standards, and rules based on the needs of the various industries. Currently, the United States Court of Appeals for the Federal Circuit and the United States Patent and Trademark Office (USPTO) are the two principal candidates for this role. Some of this debate is connected to the broader issue in legal academia of granting general regulatory authority to administrative agencies with highly specialized knowledge. Contrary to other administrative agencies, such as the United States Environmental Protection Agency (EPA), the Securities and Exchange Commission (SEC) or the Occupational Safety and Health Administration (OSHA), Congress has never granted such authority to the USPTO; scholars have criticized this inconsistency. The strongest argument that patent experts, such as Jonathan Masur and Sarah Tran, have used to question the current status of the USPTO refers to the fact that much could be gained from the information that this agency has accumulated through years of experience working with inventors in different industries, particularly with respect to tailoring patent protection.Historically, the Venetian Republic provided tailored patent protection based on the characteristics of the invention. In that context, the entity entrusted with the power to tailor the protection granted in each case was the Senate, the issuing authority. Moreover, although the Venetian Republic enacted what is widely recognized as the first Patent Act in the world in 1474, the Venetian Senate continued its practice of granting tailored patents until the end of the Republic in 1797. In fact, as explained by Luigi Sordelli in 1974, following the enactment of the 1474 Act, inventors could obtain protection in Venice in two ways: through the newly created statutory system or through the much older customary system of senatorial grants. Conclusive evidence that Sordelli’s view was correct is provided in a separate paper that I co-authored with Ted Sichelman and Toni Veneri, in which we shed important new light on the true origin of patent law. In this article, I focus instead on tailoring patent protection. Specifically, I use original documents from the Venetian State Archives to present a detailed account of how the Venetian Republic used itscustomary patent system to tailor protection to the unique characteristics of an invention.Furthermore, I provide a full analysis of what can be learned from the Venetian experience to inform the modern debate on tailoring patent protection. Until now, only two other legal scholars have conducted extensive examinations of the original Venetian patents: Ted Sichelman and Sean O’Connor. The Venetian patent system appears to have been a very successful one; it operated for more than 300 years and during the 16th century helped Venice to transform itself from being a nation of sailors to being a nation of artisans and engineers, and ultimately the center of technological development in Europe. Thus, the Venetian customary patent system offers important lessons on how tailored patent protection and higher patent quality can be achieved. An accurate description of this system is crucial to further understanding the specific steps that we should take to reach these goals today.
      PubDate: Thu, 28 May 2020 10:01:12 PDT
       
  • Same Claim Construction Standard: Efficiency or More Chaos'

    • Authors: Yi Zhang
      PubDate: Wed, 04 Mar 2020 20:00:54 PST
       
  • DATA SECURITY IN A GLOBAL ECONOMY

    • Authors: Jack Butz
      Abstract: This note examines the privacy and data security regimes in three distinct systems: that of the United States, the European Union and in India. The strengths and deficiencies of these three systems are analyzed and used as a foundation for imagining and articulating the importance of a global data privacy regime. The note argues that the nature of data protection requires a global system that balances the values of these three different systems. Despite the challenges of international cooperation and the different priorities that each of these areas has regarding data security, an international system would be beneficial compared to the current differing systems.
      PubDate: Wed, 04 Mar 2020 20:00:49 PST
       
  • SUSTAINABLE AND UNCHALLENGED ALGORITHMIC TACIT COLLUSION

    • Authors: Ariel Ezrachi et al.
      Abstract: Algorithmic collusion has the potential to transform future markets, leading to higher prices and consumer harm. And yet, algorithmic collusion may remain undetected and unchallenged, in particular, when it is used to facilitate conscious parallelism. The risks posed by such undetected collusion have been debated within antitrust circles in Europe, the US, and beyond. Some economists, however, downplay algorithmic tacit collusion as unlikely, if not impossible. “Keep calm and carry on,” they argue, as future prices will remain competitive. This paper explores the rise of algorithmic tacit collusion and responds to those who downplay it, by pointing to new emerging evidence and the gap between law and this particular economic theory. We explain why algorithmic tacit collusion is not only possible but warrants the increasing concerns of many enforcers.
      PubDate: Wed, 04 Mar 2020 20:00:44 PST
       
  • THE COST OF COERCION: IS THERE A PLACE FOR “HARD”
           INTERVENTIONS IN COPYRIGHT LAW'

    • Authors: Yifat Nahmias
      Abstract: The contractual relationship between author and intermediary—be it a producer, publisher, or anyone facilitating the commercial exploitation of the author’s copyrighted works—is often viewed as an unequal one. Other than a minority of superstars, the vast majority of authors are forced to accept contractual terms dictated by their powerful counterparties. This outcome is perceived by many scholars and policymakers as undesirable. Thus, in an effort to protect the authors’ wellbeing in their contractual dealings, legislatures from around the world are increasingly keen to adopt regulatory measures that limit the menu of options the parties can adopt contractually. Specifically, these instruments endeavor to offset author’s weak bargaining position either by ensuring a minimum level of remuneration to authors’ ex-ante or providing them with an inalienable right to ask for a modification of the com-sensation stipulated in the contract ex-post or by granting them an inalienable right to regain control of their previously transferred rights. Overall, these legislative interventions are seemingly based on the assumption that regulating author-intermediary transactions ex ante and ex post will invariably improve the financial situation of authors as a whole. This assumption is mistaken.Drawing on insights from neoclassical and behavioral economics, the benefits and drawbacks of these interventions are narrated throughout this paper. It is further demonstrated that while these legislative interventions were adopted with the best possible intentions, they ultimately prove ineffective in meeting their own objective of securing authors a more favorable distribution of wealth. In fact, they occasionally harm the very group of beneficiaries they were designed to help. Particularly, the different forms of interventions into the author-intermediary contractual relationships create an inter-author redistribution of wealth and redistribution over time, which largely harm the most vulnerable groups of authors. These findings illustrate the limitations of the current legislative interventions that were designed to strengthen the position of authors vis-àvis their counterparties and emphasize that the structural disparities in bargaining powers cannot be easily remedied by legal intervention alone.
      PubDate: Wed, 04 Mar 2020 20:00:40 PST
       
  • THE ITC IS HERE TO STAY: A DEFENSE OF THE INTERNATIONAL TRADE
           COMMISSION’S ROLE IN PATENT LAW

    • Authors: Linda Sun
      Abstract: The International Trade Commission (ITC) is a quasi-judicial federal agency that is responsible for investigating unfair trade practices. Although the ITC is widely believed to be an expert court in patent law, it is often criticized for its role in the field. This paper advances a novel analysis of the overlooked contributions of the ITC to the development and enforcement of patent law. By exploring the background of the ITC, the procedural advantages it offers, and the ways it substantively enriches patent law doctrine, this article concludes that the ITC is an important player in patent law.
      PubDate: Tue, 05 Nov 2019 14:31:04 PST
       
  • CLAIMING ADMISSIONS DATA TRADE SECRETS— TAKING ADVANTAGE OF
           STATUTORY AMBIGUITY'

    • Authors: Pallavi Mathur
      Abstract: The release of documents in recent legal battles between elite collegiate institutions and the Students for Fair Admissions, a nonprofit group seeking to eradicate the consideration of race in university admissions, has brought to question measures taken by the universities to shield information relating to their admissions processes from public view. These materials included admissions training materials, procedures for evaluating applications, and admitted applicant profiles and statistics. An examination of the universities’ justifications to prevent public disclosure of this information provides insight into their varying reliance on intellectual property protections derived for trade secrets. These varying justifications help illustrate the complex, ever-changing nature of trade secret law, in which even the baseline determination of what may properly constitute a trade secret often remains an open question. The SFFA cases further highlight how this ambiguity provides fertile grounds for entities with commercial interests to strain the boundaries of trade secret law to cover business information that, if disclosed to the public, threatens reputational harm but which may not otherwise rise to the level of trade secret.
      PubDate: Tue, 05 Nov 2019 14:30:57 PST
       
  • SCULPTURE, INDUSTRIAL DESIGN, ARCHITECTURE, AND THE RIGHT TO CONTROL USES
           OF PUBLICLY DISPLAYED WORKS

    • Authors: Richard Chused
      Abstract: This article explores the anomalous ways in which copyright owners may control use of works they publicly display. Treatment of rights associated with publicly displayed sculpture and architecture are dramatically different. The copyright statute deprives owners of copyrights in constructed buildings of the ability to police the ways in which imagery or other uses of the publicly visible structure may be exploited by others. This article focuses on three related but different settings involving the public display of (1) a work of graffiti, (2) a large-scale sculpture, and (3) a building with sculptural features. Through an analysis of the differences in their treatment, this article investigates problems in extant law and suggests potential resolutions of the issues.
      PubDate: Tue, 05 Nov 2019 14:30:50 PST
       
  • PATENTLY UNCERTAIN

    • Authors: Daniel R. Cahoy
      Abstract: Innovation is an inherently uncertain process. Success is typically coupled with risk and we can only hope that those with great ideas will persevere. To encourage innovation, society reduces some of the innovation risk through structures like funding systems, regulation, and of course intellectual property rights. But what happens when uncertainty strikes the legal protection devices themselves' Faced with unclear rules and increasingly speculative rewards, some innovators may simply stop playing the game.Such uncertainty has recently been a topic of great concern in the U.S. patent system. Some believe that the suddenly unknowable nature of fundamental questions like what is patentable has had the effect of dramatically undermining legal incentives. Others question whether a crisis really exists. They point out that uncertainty can have positive effects, and even, be a source of strategic advantage. How can we tell good uncertainty from bad'This article provides a novel framework for evaluating patent uncertainty that explains how complaints and complacency can exist contemporaneously. It draws on the behavioral economics literature to provide a deeper understanding of how innovators react to unknown legal environments. Based on this analysis, the article identifies three different types of legal uncertainty: (1) investment-killing; (2) if-then; and (3) remedial uncertainly. It asserts that only the first creates a problem that must be addressed by legal reform, while the others are actually essential to a healthy innovation system. The article concludes with specific prescriptions for addressing negative uncertainty that depend on both firm and policymaker action.
      PubDate: Tue, 05 Nov 2019 14:30:43 PST
       
  • HACKING: THE NAKED AGE CYBERCRIME, CLAPPER & STANDING, AND THE DEBATE
           BETWEEN STATE AND FEDERAL DATA BREACH NOTIFICATION LAWS

    • Authors: Nicholas Ronaldson
      PubDate: Wed, 15 May 2019 17:07:18 PDT
       
  • DANCING WITH OUR HANDS TIED: AN IMBALANCED FOCUS ON DRUGS FOR ORPHAN
           DISEASE AND RESEARCH

    • Authors: Xaviere Giroud
      PubDate: Wed, 15 May 2019 17:07:09 PDT
       
  • BEHIND THE LOW ORIGINALITY OF CHINESE REALITY TV SHOWS: COPYRIGHT
           PROTECTION AND GOVERNMENT REGULATION FOR LOCALIZATION

    • Authors: Fan Cheng
      PubDate: Wed, 15 May 2019 17:06:59 PDT
       
  • THROW AWAY THE KEY, OR THE KEY HOLDER' COERCIVE CONTEMPT FOR LOST OR
           FORGOTTEN CRYPTOCURRENCY PRIVATE KEYS, OR OBSTINATE HOLDERS

    • Authors: Andrew M. Hinkes
      Abstract: ABSTRACT—Most cryptoassets natively function as bearer instruments. Whoever controls the private key for a given cryptoasset wallet generally controls the assets held by that wallet. In a civil or criminal action or as part of a governmental investigation, parties may be ordered to disclose their private keys or to transfer cryptoassets controlled by those private keys. However, people forget things and lose things, including extremely important things. Parties may lose private keys, and thereby lose control of their assets; parties acting in bad faith, or due to ideological motivation, may claim that “lost” or “forgotten” private keys prevent them from complying with disclosure or turnover orders. Determining whether claims of lost or forgotten private keys are genuine or are bad faith attempts to protect assets will be a challenge for courts, forcing them to confront complex, technology-specific evidence and requiring that they determine whether that loss is bona fide or tactical “self-created impossibility.” Courts may likewise find that traditional contempt sanctions are insufficient to compel a motivated contemnor to comply with disclosure or turnover orders. To avoid expensive, time-consuming evidentiary hearings on contempt, parties and courts should consider ex ante measures, including standing orders and injunctive relief that would require disclosure of and prevent the loss of private keys once financial condition becomes relevant to any claim or defense in litigation. Legislators could create novel contempt sanctions that leverage the unique features of cryptoassets to lien sufficiently identifiable cryptoassets at issue. New laws could create registries listing identifiable cryptoassets subject to turnover orders (similar to state UCC registries), use the infrastructure and legal obligations imposed upon regulated intermediaries by the Bank Secrecy Act and Office of Foreign Asset Controls, or modify existing state law writs to direct stateregulated financial intermediaries to seize those identifiable cryptoassets pending further court order. Although these new sanctions would destroy the fungibility of the cryptoassets at issue and reduce their commercial value, they would also create new, efficient incentives. The lien against identifiable cryptoassets would have no impact on parties who actually lose their private key but would facilitate recovery of cryptoassets taken without authorization in a hack or theft. Finally, the threat of a lien that would adversely impact the value of the specific implicated cryptoassets would reduce the incentive for a bad faith contemnor to defy a turnover order and instead encourage compliance.
      PubDate: Wed, 15 May 2019 17:06:52 PDT
       
  • HENRY DARGER’S “REALMS OF THE UNREAL”—BUT WHO IN THE REALM IS
           KIYOKO LERNER'

    • Authors: Elyssa Westby
      Abstract: In 1973, Henry Darger died in Cook County, Illinois, leaving behind a body of drawings, paintings, and collages that has since risen to international prominence as outsider art. While Darger is a household name in the art world, Kiyoko Lerner–the widow of Darger’s last landlord, Nathan Lerner–is the listed owner on the Darger copyrights since the late 1990s. This note explores the curious case of Henry Darger’s copyrights and how Lerner’s ownership is likely invalid under legal theories of estate, gift, and landlord-tenant transfer. The case of the late photographer Vivian Maier’s estate, currently subject to legal challenge in Cook County, Illinois, serves as a prescient example of invalid copyright transfer upon discovery of an outsider artist’s work.
      PubDate: Tue, 12 Mar 2019 19:23:25 PDT
       
  • THE WAITING IS THE HARDEST PART: DOES LONGER PATENT PENDENCY MEAN MORE
           VALUABLE PATENTS'

    • Authors: Michael P. Ellenberger
      Abstract: The United States Patent and Trademark Office (USPTO) is one of the busiest—and slowest—patent offices in the world. The average utility patent is pending for 25.3 months before issuance. For parties that require legal protections in fast-moving technological fields, such as mobile technology startup, the waiting could be detrimental. Moreover, the patent backlog problems worldwide cost the global economy over $10 billion per year. Even under such a delay, an increasing number of issued patents are threatened or invalidated in the U.S. court system.Undoubtedly, then, if patents are considered to have “quality” only if they are both (a) valid and (b) litigation-proof, the USPTO is failing. If, however, instead the consideration is broadened as to what it means for a patent to be “high quality”— using the four “patent worth considerations” of market, signal, impact, and reputational value—then the situation looks far from disastrous. This note proposes to examine the time-value dynamic of a patent and evaluate whether, in consideration of a variety of metrics, long-pending patents are more valuable. In short, are patents worth the wait' This note concludes with proposals for a more efficient Patent Office through examination of existing functional policies both internal to the USPTO and abroad.
      PubDate: Tue, 12 Mar 2019 19:23:17 PDT
       
  • COPYRIGHT LAW AS AN ENGINE OF PUBLIC INTEREST PROTECTION

    • Authors: Haochen Sun
      Abstract: Courts around the world have been confronted with bewilderingly complex challenges in protecting the public interest through copyright law. This article proposes a public interest principle that would guide courts to settle fair use cases with better-informed decisions. I argue that the proposed principle would legally upgrade fair use from serving as an engine of free expression to serving as an engine of public interest protection.Based on comparative study of the conflicting rulings handed down by the U.S. and Chinese courts on Google Library, the article first considers the necessity of adopting the public interest principle in guiding the judicial settlement of fair use cases substantively and procedurally. The article then canvasses the two substantive legal standards to be embodied in the public interest principle. First, the principle would create a public interest use standard for courts to utilize in weighing the first fair use factor without applying the dichotomy of transformative and non-transformative use. At the same time, it would also require courts to employ the significant market harm standard when considering the fourth fair use factor. Second, the public interest principle would also modify the procedural rules concerning the assignment of burden of proof in fair use cases. It would place only the burden of proving a public interest use under the first factor on the user of a work who is the defendant in the judicial proceedings at hand.
      PubDate: Tue, 12 Mar 2019 19:23:07 PDT
       
  • SOCIAL CONTRACT: THE DISTRIBUTIVE SIGNIFICANCE OF A NATIVE NATION’S
           PATENT AGREEMENT WITH ALLERGAN

    • Authors: Anne Monjar
      Abstract: In 2017, pharmaceutical giant Allergan announced an innovative new agreement with the Saint Regis Mohawk Tribe of upstate New York. Allergan was to transfer ownership of the patent of its successful dry eye drug Restasis to the Tribe in exchange for an exclusive licensing agreement. The hope was that the Tribe’s sovereign immunity would protect Allergan’s patent from validity challenges, in which the patent was already embroiled, while allowing them to retain its profits.The agreement drew immediate outrage from policymakers who saw the agreement as a multi-billion-dollar corporation exploiting a legal loophole to unfairly secure its monopoly. Ultimately, the courts agreed – the Federal Circuit recently denied the Tribe’s assertion of tribal immunity in a validity challenge against Restasis.While the agreement rightfully did not survive legal challenge, there are aspects to it that are worth considering against a backdrop of utilitarian theories of intellectual property. In the latter half of the twentieth century, utilitarian justifications for patent protections have come to overshadow earlier distributive theories, which prioritized the public benefits over individual property rights. The Allergan-Saint Regis Mohawk Tribe agreement may not be a true distributive model of intellectual property. However, the ways in which the agreement required the transfer of a title from private ownership to a community, a community that did not traditionally benefit from the intellectual property system, are reminiscent of distributive protections that would greatly improve our increasingly individualistic conception of intellectual property.
      PubDate: Fri, 16 Nov 2018 00:47:40 PST
       
  • “CAN I GET YOUR DIGITS'”: ILLEGAL ACQUISITION OF WIRELESS PHONE
           NUMBERS FOR SIM-SWAP ATTACKS AND WIRELESS PROVIDER LIABILITY

    • Authors: Nathanael Andrews
      Abstract: In a SIM-swap attack, a hacker uses text messages sent to a wireless customer’s phone number to reset passwords and access critical accounts. These SIM-swap attacks are often targeted at cryptocurrency (e.g., bitcoin) holders and can result in thousands or even millions of dollars in losses. Wireless providers are often the weakest point exploited by hackers in SIM-swap attacks. These hacks are even more insidious because they rely primarily on social vulnerabilities rather than technical skill: hackers pressure accommodating customer service agents or bribe wireless provider employees in order to gain control of a wireless providers account and phone number. The wireless account and phone number provide a gateway to all the wireless customer’s digital accounts through password reset codes sent to the victim’s phone number, which is controlled by the hacker. Yet, wireless providers have failed to protect this gateway. Experience has shown that it is surprisingly too easy for a hacker to gain control of a wireless customer’s phone number. This note argues that wireless providers should be liable for negligence according to a reasonableness standard of care. Such a standard would motivate them to do more to protect wireless customers.Wireless customers are being harmed by hackers. Wireless providers are positioned to prevent that harm by blocking unauthorized control of customer phone numbers. This note provides background on the SIM-swap attack, addresses policy arguments supporting the liability of wireless providers, examines how liability of wireless providers can be found under statutory federal law, and argues that common law negligence is the most appropriate route to wireless provider liability. The policy-based arguments address victims with a pressing need for remedy, wireless providers as the least cost avoider, and wireless providers as the most competent avoider. The law-based arguments address the roles of the FCC and the FTC in SIM-swap attacks and distinguish developments in negligence common law liability for general data breaches. In short, this note argues that SIM-swap attacks give rise to important harms, wireless providers should be liable for those harms, and negligence with a reasonableness standard of care is the right standard for liability.
      PubDate: Fri, 16 Nov 2018 00:47:34 PST
       
 
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