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American University Law Review
Journal Prestige (SJR): 0.208

Number of Followers: 15

This is an Open Access Journal

Open Access journal
ISSN (Print) 0003-1453
Published by WCL

[11 journals]

CVE and Constitutionality in the Twin Cities: How Countering Violent
Extremism Threatens the Equal Protection Rights of American Muslims in
Minneapolis-St. Paul
- Authors: Sarah Chaney Reichenbach
  Abstract: In 2011, President Barack Obama announced a national strategy for countering violent extremism (CVE) to attempt to prevent the “radicalization” of potential violent extremists. The Obama Administration intended the strategy to employ a community-based approach, bringing together the government, law enforcement, and local communities for CVE efforts. Despite claiming to target extremism in all forms, government-funded CVE programs in the United States have almost exclusively focused on Islamic extremism. One pilot program focused on the Twin Cities in Minnesota—Minneapolis and St. Paul—home to the largest Somali community in the United States, most of whom are Muslim. The Trump Administration has rebranded and refunded the programs, exacerbating ongoing racial discrimination, surveillance, and police brutality in the Twin Cities. Despite their continued use, CVE programs draw criticism for being ineffective and even counterproductive to preventing extremist violence and for driving increased marginalization of American Muslims.This Comment argues that, as implemented, government-funded CVE programs in the Twin Cities violate American Muslims’ Equal Protection rights under the Fifth and Fourteenth Amendments. Specifically, CVE programs impermissibly target Somalis on the basis of national origin and religion, and many of these programs are not sufficiently narrowly tailored to pass constitutional muster. To effectively and constitutionally prevent violent extremism, the U.S. government must allow communities to meaningfully identify and address their own needs and potential vulnerabilities, without being subjected to heightened surveillance and marginalization.
  PubDate: Fri, 21 Aug 2020 10:59:53 PDT
A Break From Reality: Modernizing Authentication Standards for Digital
Video Evidence in the Era of Deepfakes
- Authors: John P. LaMonaga
  Abstract: The legal standard for authenticating photographic and video evidence in court has remained largely static throughout the evolution of media technology in the twentieth century. The advent of “deepfakes,” or fake videos created using artificial intelligence programming, renders outdated many of the assumptions that the Federal Rules of Evidence are built upon.Rule 901(b)(1) provides a means to authenticate evidence through the testimony of a “witness with knowledge.” Courts commonly admit photographic and video evidence by using the “fair and accurate portrayal” standard to meet this Rule’s intent. This standard sets an extremely low bar—the witness need only testify that the depiction is a fair and accurate portrayal of her knowledge of the scene. In many cases, proponents’ ability to easily clear this hurdle does not raise concerns because courts rely on expert witnesses to root out fraudulent evidence; thus, although the fraudulent evidence might pass the fair and accurate portrayal standard, it would later be debunked in court.The proliferation of deepfakes severely complicates the assumption that technological experts will be able to reliably determine real from fake. Although various organizations are actively devising means to detect deepfakes, the continued proliferation and sophistication of deepfakes will make debunking fake video more challenging than ever. Witnesses who attest to the fair and accurate portrayal standard will likely not be able to identify subtle but important alterations in deepfakes. As a result, fraudulent evidence, authenticated through the Rule 901(b)(1) standard, will increasingly enter courtrooms with a decreasing ability for witnesses and courts to identify fakes. Because the technology to detect deepfakes lags behind the creation methods, deepfakes present a critical threat to courtroom integrity under the current standard.The rising probability that juries see fake videos warrants a higher burden on the proponent of video evidence. Requiring additional circumstantial evidence to corroborate video evidence is a small but crucial step that will mitigate, but not solve, the coming deepfakes crisis. Further engagement around this topic is necessary to address the deepfakes crisis before it creates irreparable harm.
  PubDate: Fri, 21 Aug 2020 10:59:44 PDT
Judge, Jury, and Executioner: Why Private Parties Have Standing to
Challenge an Executive Order That Prohibits ICTS Transactions with Foreign
Adversaries
- Authors: Ari K. Bental
  Abstract: On May 15, 2019, President Donald Trump, invoking his constitutional executive and statutory emergency powers, signed Executive Order 13,873, which prohibits U.S. persons from conducting information and communications technology and services (ICTS) transactions with foreign adversaries. Though the executive branch has refrained from publicly identifying countries or entities as foreign adversaries under the Executive Order, observers agree that the Executive Order’s main targets are China and telecommunications companies, namely Huawei, that threaten American national security and competitiveness in the race to provide the lion’s share of critical infrastructure to support the world’s growing 5G network.Executive Order 13,873 raises several concerns—both broad and specifically related to the Trump Administration. In general, courts have struggled to clearly define the legal status of executive orders or the courts’ ability to review executive orders. The quasi-legislative nature of executive orders creates tension with the separation of powers principle and contributes to courts’ challenges in addressing concerns that they raise. The Trump Administration has continued a concerning trend of pursuing policy objectives through executive orders rather than through Congress in the current era of legislative gridlock. This Administration has also weaponized trade policy to accomplish national security objectives and implement a protectionist strategy that threatens the U.S.’s position as the world’s leading economy.This Comment argues that affected parties have standing to challenge the government’s enforcement of this Executive Order against them in Article III courts in defense of their due process rights, despite language in the Order that may suggest it is exempt from judicial review. By analogizing the new interagency committee tasked with implementing Executive Order 13,873 to the Committee on Foreign Investment in the United States, this Comment uses the precedent the D.C. Circuit established in Ralls Corp. v. CFIUS to demonstrate that hypothetical U.S. person plaintiffs, who may be involved in ICTS transactions with foreign adversaries, have a due process right to notice of, access to, and the opportunity to rebut the unclassified information the government uses to justify enforcement action against them under Executive Order 13,873. This Comment concludes by synthesizing the arguments of important stakeholders who have submitted public comments on the proposed rule for enforcing the Executive Order and providing policy recommendations to improve the efficacy and fairness of the implementing regulations.
  PubDate: Fri, 21 Aug 2020 10:59:35 PDT
Predictability of Arbitrators' Reliance on External Authority'
- Authors: Ariana R. Levinson et al.
  PubDate: Fri, 21 Aug 2020 10:59:26 PDT
Labor, Trade, and Populism: How ILO-WTO Collaboration Can Save the Global
Economic Order
- Authors: Sungjoon Cho et al.
  Abstract: Populists are trying to take down the global economic order and its institutions. While some of those forces might be fueled by racism, they also play to legitimate social concerns that include massive plant closings and deindustrialization, inadequate skills programs, and lack of decent jobs. Some of these problems also concern the Global South, as workers there face exploitation, unhealthy working conditions, and other social ills caused by global capitalism. In light of these problems, this Article argues that the International Labor Organization (ILO) should design new conventions on lead firm liability and mass layoffs. While other scholars and policymakers have already argued that lead firms should shoulder employer responsibilities of their suppliers, contractors, and franchisees, this is the first law review article that calls for an ILO convention that can diffuse such rules globally.The Article also calls on the World Trade Organization (WTO) to advise the ILO on these labor-protective conventions. The WTO, as an expert trade body, can better ensure stakeholders that these new conventions will comply with international trade law and policy, including with WTO “public morals” exception rules and with rules on technical barriers on trade and tax and subsidies. In doing so, the WTO can guarantee that the new conventions, far from hurting trade, will help to enhance the global trade regime. Moreover, the WTO, through its “peer review” practice, where stakeholders can discuss how to create and implement new labor and trade policies, can help coordinate a muchneeded global dialogue for a more inclusive globalization. This is also true of the ILO conventions that we advocate for here.We conclude by addressing likely arguments against our proposal, including from scholars and policymakers skeptical of the role that international law can have on the current political turmoil. After addressing those objections to our proposal, we maintain that collaboration between the ILO and the WTO, while certainly not the panacea for all the complex and daunting problems of our times, remains critical to restore legitimacy to the global economic order in a postpopulist era.
  PubDate: Fri, 21 Aug 2020 10:59:16 PDT
The Decline and Fall of Circumstantial Evidence in Antitrust Law
- Authors: Christopher R. Leslie
  PubDate: Fri, 21 Aug 2020 10:59:07 PDT
Fundamentally Unfair: Databases, Deportation, and the Crimmigrant Gang
Member
- Authors: Katherine Conway
  Abstract: Provocative language painting immigrants as dangerous criminals and promises of increased immigration enforcement were cornerstones of Donald j Trump's presidential candidacy. As president, he has maintained this rhetoric and made good on many of his promises by broadening the definition of "criminal conduct" for immigration enforcement purposes, touting a renewed focus on immigrant gangs and cartels, and conducting several nation-wide anti-gang sweeps that placed an estimated 1095 "known" gang members in Immigration and Customs Enforcement (ICE) custody. But the Trump Administration did not create the specter of the criminal immigrant, or "crimmigrant," gang member, nor did it create the detection and removal infrastructure, preloaded with thousands of "gang members." Rather, the Trump Administration inherited the crimmigrant gang-member pipeline from the Obama Administration.To target noncitizen gang members, the Obama Administration utilized data sharing agreements between the Department of Homeland Security and state and local law enforcement to create immigration priority lists from state gang membership databases. Under these agreements, ICE is authorized to search nearly a thousand databases for removable non citizens. The entries in these databases, however, present significant due process and data accuracy concerns, especially when this data flows unimpeded and uncorroborated from local law enforcement into civil immigration proceedings.The Fifth Amendment protects noncitizens in civil removal proceedings and affords them the right to a full and fair hearing, along with a reasonable opportunity to present evidence on their own behalf and examine the evidence against them. The use of unsubstantiated gang data in removal proceedings violates these rights, making the hearing fundamentally unfair. Applying the Mathews v. Eldridge test to the use of unsubstantiated gang data in removal proceedings, the current procedures violate a noncitizen's due process rights and increase the risk that otherwise eligible immigrants will be erroneously denied the chance to meaningfully apply for relief and then removed from the country. To comport with the fundamental fairness evidence standard and ensure noncitizens accused of gang membership receive a full and fair hearing, unsubstantiated gang data must either be excluded from removal proceedings, shared with the individual in advance, or corroborated before it is shared with the individual and admitted into evidence in immigration proceedings.
  PubDate: Thu, 02 Jul 2020 06:58:34 PDT
Data Transmission and Energy Efficient Internet Data Centers
- Authors: Joseph R. Briscar
  Abstract: The internet is a marvel of human accomplishment and a feat of technological engineering, which allows nearly instantaneous communication across the globe-an act once considered the stuff of science fiction. It has been lauded for its environmental benefits, such as reducing paper production and waste, but, as with any great accomplishment, there are unintended consequences. The increased proliferation of electronic devices to access the internet and the exponential advancement of those devices results in large amounts of electronic waste-a problem in its own right. Compounding the issue, for all of those internet-enabled devices to work, they must rely on the backbone of the internet: data servers. Data servers are connected by the thousands within data centers, and these centers must continuously draw electricity from the national electric grid to keep up with internet user demand. This overwhelming amount of energy and electricity consumption creates huge electricity bills for U.S. companies and produces millions of metric tons of toxic carbon emissions annually.This Comment addresses the impacts of increased energy consumption by internet data centers and suggests a regulatory solution to make those data centers more energy efficient. Within the United States, the Federal Energy Regulatory Commission is the best-suited agency to address the energy efficiency of the internet. Under the Federal Power Act-and consistent with the Supreme Court's interpretation of the Act's language in New York v. FERC and FERC v. Electric Power Supply Ass'n-FERC has the authority to mandate efficiency standards for internet data centers because those data centers transmit electric energy in interstate commerce and may be considered transmission facilities. Overall, this Comment aims to suggest a regulatory means by which the United States can reduce its energy consumption, thereby harmonizing environmental and business concerns to allow for sustainable economic growth.
  PubDate: Thu, 02 Jul 2020 06:58:27 PDT
Can We Act Globally While Thinking Locally' Responding to Stella Burch
Elias, The Perils and Possibilities of Refugee Federalism
- Authors: Kit Johnson
  Abstract: In The Perils and Possibilities of Refugee Federalism, Professor Stella Burch Elias skillfully exposes both the dangers and the opportunities presented by state responses to the resettlement of refugees within their borders. She concludes that states are prohibited from excluding refugees from their territory, but she argues that states have a previously untapped opportunity to legislate at the local level in an effort to promote the integration of refugees into their communities.This Response does not challenge those conclusions. Rather, this Response seeks to provide context to the idea of refugee federalism by further discussing the problem, acknowledged by Professor Elias, that, legal or not, states are successfully avoiding the placement of refugees within their borders. Additionally, this Response attempts to articulate a concern that increasing state involvement regarding the selection of refugees may exacerbate the nimbyism that already pervades the treatment of refugees in the United States.
  PubDate: Thu, 02 Jul 2020 06:58:19 PDT
The New New Courts
- Authors: Orna Rabinovich-Einy et al.
  Abstract: In this Article we describe the phenomenon of online courts, which is fast gaining momentum, and analyze these "new new courts" from an access to justice perspective. We distinguish between two turning points in terms of access to justice and courts: the rise of alternative dispute resolution (ADR) (producing what we refer to as the "new courts") and the spread of online dispute resolution (ODR) (giving rise to what we refer to as the "new new courts"). While both developments seem to be motivated by similar rationales and a desire to increase access to justice, the implications of adopting ADR and ODR are different. The benefits associated with institutionalizing ADR in terms of access to justice were perceived primarily in efficiency-related terms due to the assumption that an inherent trade-off exists between efficiency and fairness. This assumption is now being challenged through ODR in the context of the new new courts. Because of the qualities of the digital medium and internet communication, ODR could potentially increase both the efficiency and fairness of dispute resolution processes, formal and informal. At the same time, the new new courts, precisely because of their reliance on algorithms and data, present novel challenges to fairness and open the door to new sources of danger for disputants and the judicial system.
  PubDate: Thu, 02 Jul 2020 06:58:11 PDT
Unconventional Refugees
- Authors: Elizabeth Keyes
  Abstract: Refugees are a flash point for political divisions in the United States and abroad. The enormous personal, moral, and legal challenges posed by the displacement of refugees around the world reveal the dire inadequacies of our current policies toward refugee protection. Children running to border agents at the U.S. southern border are treated as a security threat to be deterred, instead of a vulnerable population needing some level of protection. The numbers of people seeking safety in the United States, while not objectively high, places further strain on an already under-resourced and heavily burdened immigration system, which at the end of the day, offers only partial hope to some of those seeking safety. Simply put, our current laws are simply not designed to offer meaningful protection that fits the contours of new waves of forced migration.This Article breaks open a debate that has been caught between the binaries of protection versus deterrence, and instead asks what framework could effectively serve multiple goals, both short-term protection and long-term deterrence and public safety. To do this, it questions our exclusive focus on the protection afforded by the Refugee Convention, and considers what rights to protection might be owed to "unconventional refugees."The Refugee Convention's principle of non-refoulement (or non-return to the persecuting country) imposes significant duties on receiving nations like the United States, while its implementation requires intensive individualized determinations that create great demands on an overstretched immigration system. Its high value comes from the path it creates for refugees to ultimately access U.S. citizenship, and the value necessarily entails a process of great detail and depth. This Article considers whether a complementary form of protection for unconventional refugees is appropriate--protection that is perhaps less valuable, but also less complex to administer and easier for the refugees to access.The Article examines precedents in U.S. immigration laws for such a reimagined form of protection, and examines a series of justifications, both philosophical and pragmatic, for such protection. The world is undeniably experiencing a moment where even the Refugee Convention meets considerable political opposition, so the project of developing a new framework is a long-term one, but it is a project that merits thoughtful consideration starting now. The principle of non-refoulement was once novel, and now constitutes a powerful principle of international law. A new principle for protecting unconventional refugees may also be possible, but only if we begin the task of imagining it.
  PubDate: Thu, 02 Jul 2020 06:58:03 PDT
"No Ordinary Lawsuit": Climate Change, Due Process, and the
Public Trust Doctrine
- Authors: Michael Blumm et al.
  Abstract: On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government's fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of due process and enforceable through the Constitution's due process clause. At trial, if the youth plaintiffs are able to prove that for decades the government willfully disregarded information about the potential catastrophic effects of GHG pollution, or abdicated its public trust duties, the decision could be transformative in global efforts to shift to an energy policy that does not threaten young people and future generations.This Article examines Juliana, its context as part of a worldwide campaign of "atmospheric trust" litigation, its path-breaking reasoning, and its implications in the United States and abroad. The case has been described as "the case of the century" and, because of the harm it aims to address and the fundamental rights approach endorsed by the court, it just may be that. Pending the forthcoming trial and almost certain appeals, we think the case is, as the trial judge accurately recognized, "no ordinary lawsuit."
  PubDate: Thu, 02 Jul 2020 06:57:55 PDT
It's Time to Stop Punting on College Athletes' Rights:
Implications of Columbia University on the Collective Bargaining Rights of
College Athletes
- Authors: Lucas Novaes
  Abstract: The National Labor Relations Board ruled in Columbia University that student assistants who have a common law employment relationship with their university are statutory employees under the National Labor Relations Act, which granted them full bargaining rights and union protection. However, just one year earlier, the Board decided to not address the question of whether college athletes receiving grant-in-aid scholarships should similarly be accorded the protections of the Act as statutory employees. Importantly, the Board noted that it was well-suited to make that determination in the future.College athletes have been left in legal limbo as the teams, universities, and athletic conferences they work for have continued to profit exuberantly while denying them any substantial rights. The increased commercialization of collegiate sports has paralleled the prohibitive control that athletic conferences and universities exert over the athletic, social, and academic lives of college athletes. Thus, the Act-designed to prevent exploitation of labor-is the legal remedy available to college athletes seeking to reclaim their dignity and achieve equity in bargaining power.This Comment argues that the Board's decision in Columbia compels a finding that grant-in-aid athletes, or college athletes, participating in revenue-generating sports at Division I private universities and colleges are employees under the Act. Specifically, Columbia's statutory and common law test, as well as the jurisdictional discretion standard, all require a finding that it is legally unsound to continue to deny-under the veil of "amateurism "-college athletes the protections available to them under federal labor law while conceding that student assistants are deserving of those same protections
  PubDate: Thu, 02 Jul 2020 06:57:40 PDT
Waste in Space: Remediating Space Debris Through the Doctrine of
Abandonment and the Law of Capture
- Authors: Emily M. Nevala
  Abstract: With the growing commercialization of outer space, the threat of damage to satellites from detritus hurtling through space could prevent the continued installation of satellites. The cure for this issue cannot simply come from mitigation efforts; governments and organizations involved in spacefaring activities must participate in active remediation measures. International space agency guidelines and U.S. statutes and regulations are productive preventative measures against further accumulation of debris. In addition, a number of organizations are working on new technology to actively reduce orbital debris. These active processes for culling debris from orbit are essential for the reduction of debris buildup.One possible barrier to the organizations looking to clean up outer space is property ownership rights. Enforcement of ownership rights rests with domestic law, which would accordingly need to be applied extraterritorially to satellites in space to uphold ownership interests. Though the U.S. Supreme Court has set forth a presumption against extraterritorial application of domestic laws, U.S. domestic laws apply in the narrow instance of suits arising when actions in international areas do not invoke international law or create a conflict of laws problem. With this the case, remediators should look to the doctrine of abandonment as a way to easily facilitate the capture of debris and defunct satellites. Under this doctrine, an owner has abandoned the property if he unilaterally relinquished "all title, possession, or claim to or of [the property]."Applying the abandonment doctrine to post-mission satellites can help determine the legal ramifications of trying to clean up post-mission satellites and how those actions might impact ownership rights. Owners generally take one of two actions as regards post-mission satellites: (1) leaving the satellite in its mission orbit or (2) moving the satellite from its mission orbit to its disposal orbit. When owners fail to move post-mission satellites into a disposal orbit, the satellites qualify as abandoned property and can therefore be captured. A more nuanced, case-by-case analysis must apply when owners take the prescribed steps to move post-mission satellites to a disposal orbit. While post-mission satellites can be analyzed through the doctrine of abandonment, orbital debris does not easily fit into the analysis and cannot be reduced through the avenue of abandonment and capture.
  PubDate: Thu, 02 Jul 2020 06:57:33 PDT
Why Anti-Surcharge Laws Do Not Violate a Merchant's Freedom of Speech
- Authors: Annie P. Anderson
  Abstract: First Amendment litigation is surrounding state anti-surcharge laws, which prevent merchants from imposing surcharges on transactions where customers use credit cards. These laws effectively prevent stores from passing credit card "swipe fees" onto their customers. Merchants argue that because the laws still allow them to provide discounts to customers who use other forms of payment, the laws violate their First Amendment rights by impermissibly restricting the way the stores can communicate. The state governments, in contrast, have defended the laws by asserting that they regulate conduct, not business speech, and therefore do not violate the First Amendment.The Supreme Court in Expressions Hair Design v. Schneidermananswered part of the inquiry when it held that New York's anti-surcharge law violated speech, not conduct. Now, the case will return to the Second Circuit, which will determine whether it survives constitutional scrutiny. This Comment argues that anti-surcharge laws do not violate the First Amendment because they regulate speech that relates to commercial transactions and are thus categorized as commercial speech. Further, this Comment argues that state anti-surcharge laws survive the intermediate scrutiny applied to commercial speech as established by Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.
  PubDate: Thu, 02 Jul 2020 06:57:25 PDT
The Fiscal Illusion Zombie: The Undead Theory of Government Regulatory
Incentives
- Authors: Christopher Serkin
  Abstract: This is a Response to Bethany R. Berger's recent Article, The Illusion of Fiscal Illusion in Regulatory Takings. In that Article, Professor Berger argues against the view that governments should be forced to compensate for regulatory burdens because they suffer from fiscal illusion and will only internalize the costs that they, in fact, have to pay. She demonstrates that property taxes already provide a mechanism through which governments internalize both the costs and benefits of their property regulations, and that compensation for regulatory takings is therefore unnecessary and even perverse for creating efficient regulatory incentives. This Response argues that she is correct and that her criticism joins many others before it. However, despite these significant criticisms, fiscal illusion continues to inform takings theory. This Response ultimately demonstrates that even if Professor Berger is correct, her proposed responses do not entirely address the problem that compensation will over-deter government regulations, and so this Response proposes both municipal insurance and liability for regulatory inaction as potential interventions.
  PubDate: Thu, 02 Jul 2020 06:57:17 PDT
Birthright Citizenship Under Attack: How Dominican Nationality Laws May be
the Future of U.S. Exclusion
- Authors: Ediberto Roman et al.
  Abstract: Attacks on birthright citizenship periodically emerge in the United States, particularly during presidential election cycles. Indeed, blaming immigrants for the country's woes is a common strategy for conservative politicians, and the campaign leading up to the 2016 presidential election was not an exception. Several of the Republican presidential candidates raised the issue, with President Donald Trump making it the hallmark of his immigration reform platform. Trump promised that, if elected, his administration would "end birthright citizenship."In the Dominican Republic, ending birthright citizenship and curbing immigration are now enshrined into law, resulting from a significant constitutional redefinition of Dominican citizenship and a major court decision. Essentially, the Dominican Republic both modified its constitutional equivalent of the Fourteenth Amendment to the U.S. Constitution and also ruled that change applied retroactively, leaving four generations of former citizens stateless. Both the U.S. and the Dominican cases are driven by the same factors: fear and distrust of foreigners, historical xenophobia, selective interpretation of citizenship, and plain racial discrimination.In this Article, the authors examine the historical context of the Dominican Republic and the United States, including legal precedents and constitutional modifications and the actual and potential legal ramifications and social consequences of these changes. They conclude that in both cases, these changes are for the wrong socio-political reasons, are based on flawed legal arguments, and are harmful to constitutional and human rights. The authors call for inclusive, welcoming legal regimes that enhance-rather than undermine citizenship rights.
  PubDate: Thu, 02 Jul 2020 06:57:09 PDT
Conspicuous Philanthropy: Reconciling Contract and Tax Laws
- Authors: William A. Drennan
  Abstract: It sold for $15 million, and the IRS treated it as worthless. Avery Fisher, a titan of industry and a lover of classical music, made a generous contribution to renovate a charity's building, and in exchange the charity agreed to name the building after Fisher in perpetuity. Forty years later, the Fisher family sold the naming rights back to the charity for $15 million in cash. The IRS treats these publicity rights as worthless when charities grant them, and this generates substantial tax benefits for the donor and the donor's family. In contrast, the common law can treat these publicity rights as valuable consideration supporting an enforceable contract, and a charity may be liable for damages if it renames a building. Why the contradiction' What are the consequences' Should we reconcile these positions' How' This Article asserts that the common law contract approach is well-suited for today's mega-million dollar charitable building naming rights deals, but the tax approach is outdated and inconsistent with U.S. Supreme Court precedents.
  PubDate: Thu, 02 Jul 2020 06:57:01 PDT
Holding the FBI Accountable for Hacking Apple's Software Under the
Takings Clause
- Authors: Mark S. Levy
  Abstract: Smartphones have swiftly replaced most-if not all-conventional methods of sending, receiving, and storing personal information. Letters, address books, calendars, and trips to the bank have been rendered obsolete by tools such as text messaging, digital contacts, iCal, and mobile banking apps. Although these digital alternatives are convenient, they are not immune from attack. Therefore, to remain competitive, technology companies must maintain safe and secure platforms on which users may freely store and share their personal information.Apple Inc., for example, strives to protect its users' intimate information, consequently earning a reputation for prioritizing security. Like a king protecting his castle, Apple has erected a variety of technological and legal barriers to guard its users' data and ward off unwanted intruders from vulnerabilities at a variety of stages. First, to protect user data from unauthorized access, Apple's software authorizes iPhone users to set their own passcode. Next, Apple encrypts its iPhone software, essentially placing adigital padlock on its software to preclude any software alterations, including the user-determined passcode functionality. Lastly, Apple copyrights its encryption padlock, discouraging rogue actors from circumventing its technology and security features in fear of civil or criminal implications.In the spring of 2016, however, the federal government pillaged Apple's digital fortress, overcoming each of these barriers. The Federal Bureau of Investigation (FBI) was investigating the terrorist attack in San Bernardino, California, and Apple's security mechanisms precluded access to a shooter's iPhone, which was locked with the user-determined passcode. Nonetheless, the FBI hired professional hackers to alter Apple's software, thereby circumventing Apple's encryption and ignoring Apple's copyrights, to access the iPhone.Although the FBI opened just this one phone, just this one time, its hacking has much broader implications. By altering Apple's software to circumvent its encryption, it smashed Apple's digital padlock, essentially creating a master key capable of opening hundreds of millions of iPhones, jeopardizing users' intimate information. The FBI has devalued Apple's coveted security and risked Apple's reputation. Despite Apple's copyright, Apple has no statutory remedy available; however, the Takings Clause in the Fifth Amendment of the United States Constitution affords Apple a simple solution.This Note contributes to the contentious debate about prioritizing individual privacy in the face of increasingly innovative and complex national security threats. It suggests a novel way to deter governmental intrusion by establishing that Apple's copyrights are "prroperty" under the Fifth Amendment and by characterizing the FBI's investigative conduct in the San Bernardino case as a "taking" under the Fifth Amendment. Constitutionally requiring the federal government to pay 'just compensation" necessarily compels it to consider in its calculus the economic consequences of circumventing a technology company's encryption, potentially preventing such intrusion in the first place.
  PubDate: Wed, 01 Jul 2020 13:24:41 PDT
Corporate Directors' and Officers' Cybersecurity Standard of
Care: The Yahoo Data Breach
- Authors: Lawrence J. Trautman et al.
  Abstract: On September 22, 2016, Yahoo! Inc. ("Yahoo") announced that a data breach and theft of information from over 500 million user accounts had taken place during 2014, marking the largest data breach ever at the time. The information stolen likely included names, birthdays, telephone numbers, email addresses, hashed passwords, and, in some cases, encrypted or unencrypted security questions and answers. Yahoo further disclosed its belief that the stolen data "did not include unprotected passwords, payment card data, or bank account information." Just two months before Yahoo disclosed its 2014 data breach, it announced a proposed sale of the company's core business to Verizon Communications. Then, during mid-December 2016, Yahoo announced that another 1 billion customer accounts had been compromised during 2013, a new record for largest data breach.Social media and electronic commerce websites face significant risk factors, and an acquirer may inherit cyber liability and vulnerabilities. The fact pattern in this announced acquisition raises a number of important corporate governance issues: whether Yahoo's conduct leading up to the data breaches and its subsequent conduct constituted a breach of the duty to shareholders to provide security, the duty to monitor, the duty to disclose, or some combination thereof the impact on Verizon shareholders of the acquisition price renegotiation and Verizon's assumption of post-closing cyber liabilities; and whether more drastic compensation clawbacks for key Yahoo executives would be appropriate. Cybersecurity remains a threat to all enterprises, and this Article contributes to the corporate governance literature, particularly as it applies to mergers and acquisitions and the management of cyber liability risk.
  PubDate: Wed, 01 Jul 2020 13:24:33 PDT