A conversation with five Fordham Law professors about technology and information law
Few industries move as quickly as technology does, and the information and data that flow with technological change move at an equally head-spinning velocity. Often, the law struggles to keep pace with the speed of development. Fordham Lawyer spoke with five professors—Janet Freilich, Hugh Hansen, Ron Lazebnik, Joel Reidenberg, and Olivier Sylvain—about information law in our ever-accelerating era of technology and computing power.
How has technology affected privacy? What can the law do to help protect privacy in an era of increasingly sophisticated technological tools?
Reidenberg: Technology has eroded privacy by essentially creating ubiquitous surveillance. So many of the devices we use in our everyday life cannot function unless the individuals using them are tracked. We’ve seen it in both the private and public sectors.
There is a counterweight, albeit not currently used effectively, that technology can also be used to help protect privacy. Tools for anonymity exist. Encryption, for example, is one of those technologies that helps protect certain types of privacy.
Looking systemically, we see a lot of information generated about individual activities that previously wasn’t available, and it’s traceable.
Lazebnik: Another viewpoint some hold is that technology has basically brought us back to a kind of small-
village mentality—where everybody knows everybody’s business. Whether that’s good or bad is a public-choice concern.
Reidenberg: It’s not exactly the small village, because in the small-village era everyone knew everyone else. There were various social constraints. The village gossip was not generally highly regarded. Today, the problem is that you know everything about everyone, including those on the other side of the world even if you’ve had no other contact with them.
Hansen: Except we don’t know everything about everyone. Theoretically, someone possibly could, but as a practical matter, I don’t know that technology has made that much of a difference.
We’re all giving everything to Apple or Google, and nobody is blinking an eye about it. The people in the world the least concerned with privacy are those of us in the United States. It becomes serious only when government becomes involved. Then you have people on both sides who take positions. Generally speaking, I don’t hear anyone saying, “This iPhone—what is it doing to me? What is it doing to my privacy?”
Freilich: It’s important to differentiate between the existence of a phenomenon and people’s awareness of the phenomenon. Lack of awareness does not necessarily mean that something is not a problem, but it may indicate that there is less impact on people’s lives at the moment. In addition, certain information law issues affect some groups more than others, so you may have a situation where certain smaller groups are highly aware of and affected by lack of privacy whereas the public at large is not.
Sylvain: I think that most people just don’t know the extent to which their information is shared by third parties, and maybe they’re okay with that ignorance. They may not be bothered by Amazon or Google giving recommendations based on data collected about them. However, when people find out that there are other kinds of third parties and brokers that get this information, they become much more alarmed. A research study by scholar Joseph Turow [of the Annenberg School of Communication at the University of Pennsylvania]found that, during the course of asking people about their information environment, the more they learned the more scared they became.
Lazebnik: One way to examine privacy and technology is to consider the different groups that are potentially using this private information. One is the public at large. A second is direct commercial exploitation, where the person who is distributing the private information is directly benefiting from sharing that information. A third is indirect commercial exploitation, which Olivier referred to with the Turow study. A fourth is the government. Once you identify those audiences, then you can have a discussion as to what we’re comfortable with what the law should say about each one of them. The law, however, does not necessarily divide them that easily.
Is there a blurring of those audiences?
Reidenberg: It’s not necessarily a blurring of the audiences; it’s a blurring of the information. For example, information collected by an organization seeking to exploit its commercial value is now also available to the government. So it can’t really be seen in isolation from what is happening in these other sectors.
Lazebnik: The reverse is a reality, too. The government, through its normal course of business, collects information about us in various ways initially for a very legitimate use. But as we become a more open-access government—where big data is collected by the government and then shared on sites like data.gov—there’s the potential that commercial exploiters can find out things about individuals that may make those individuals very uncomfortable.
Reidenberg: Or that are used in ways inappropriately adverse to an individual. For example: What happens when local police put stop-and-frisk or arrest record data online. Let’s take the case of stop-and-frisk that results in nothing or an arrest that results in dismissal. The information nevertheless goes online and now individuals may be harmfully labeled. If that data enters the stream of commerce, those individuals are now wearing a scarlet letter.
Lazebnik: It could affect their credit rating.
Reidenberg: It affects job prospects.
Sylvain: The implications in New York are dramatic to the extent that police stop-and-frisk tactics are racially biased, so the information that’s collected will exacerbate an already pernicious problem.
Let’s talk about the Apple-FBI case. Following the December 2015 shooting in San Bernardino, the FBI sought a court order to compel Apple to unlock the iPhone of one of the shooters. Apple refused. Ultimately, the FBI was able to unlock the phone with the help of a third party. This case raises many questions about privacy and technology.
Sylvain: Should Apple have acquiesced? I think that any sensible company, in light of the controversy, should not have acquiesced, because this was a controversial area. If in the end the judge decided that Apple was wrong, then there is a judicial process to resolve it.
The San Bernardino case is just one of many in which the government has made similar requests. Late last year, a federal judge in Brooklyn rejected the government’s request to have the court order Apple to cooperate in a separate investigation. The law is not settled just yet. And Apple was not wrong to hold the line.
Reidenberg: I think we have to be clear on what we know and what we don’t know about a particular case. There was a lot of grandstanding on both sides. Apple was asserting that it did not have in its possession at the time of the request the technology to unlock the phone—that it was encryption designed in a particular way that was out of their control—and that was a conscious choice that Apple had made.
We’ve seen estimates that range dramatically in terms of what effort it would have taken for Apple to reengineer its product to enable access. We know that the FBI, when challenged, decided to hire a third-party firm to hack rather than push the point where public opinion was siding against the bureau. If the hack was something trivial, I think it’s a much less sympathetic case for Apple. If it does in fact take a fair amount of real engineering, then it’s pretty troubling to see a federal judge ordering the parties to essentially remake a product for the government’s access.
Hansen: If a particular person blows up a building and a lot of people die because of their concern for privacy, that is going to be the end of privacy rights. Privacy advocates are arguing the wrongness of the government without any idea or analysis about its crime-fighting imperative.
Let’s talk about patent law. How is the language of patents problematic and how can patent claims be rendered more clearly?
Freilich: The general wisdom on why patent language is problematic is that it’s very difficult for non-lawyers to understand and, at times, hard for lawyers to understand too. We sometimes say that patents are written not in English but patent-ese. The words are sometimes too vague; it can be very hard to figure out what exactly is covered by the language of the patent.
That said, there’s actually surprisingly little research on what exactly the problems are with patent language. It’s an increasing and exciting area of research, but we don’t really understand what the problems are yet. I think we need to really know that in order to fix it.
While I am criticizing patent language here, I do want to mention that patents are very hard to write. I give a lot of credit to people who draft patents. These attorneys and patent agents are trying to write a legal formula that describes something new, something that no one has ever heard of. They’re restricted to only one sentence: the patent claim. The patent claim has to describe this brand new invention concisely, cover the essence of the invention and not cover anything that was made before, and then hold up to careful scrutiny by litigators and courts for maybe 10 or 15 years after the fact. That is a really hard thing to do.
Lazebnik: It has also become more difficult as time has gone by because the technologies have become more complex. If you look at the older Supreme Court cases that talk about patents, the patent drawings are actually in the Supreme Court opinion because it helped the justices talk about what the invention was and what was or was not claimed. It’s much harder these days, even when looking at the drawings, to know exactly what the invention is and so the language does become more opaque.
As Janet points out, it’s always a very difficult, ex-ante situation for people to try to draft things to fully capture what the client has done and then have somebody with the benefit of hindsight attack it.
Reidenberg: This has also been a big issue for software patents. Once the court began to allow patents for software, drafting them in a way that would satisfy patent standards became controversial because of attempts to draw them very broadly.
Freilich: One of the interesting things about intellectual property is that it’s really about incentivizing people to generate new information rather than to disclose that information to the public.
Lazebnik: Certainly patent and copyright are about that: the creation and then disclosure of information.
Hansen: I don’t think copyright is about that. Copyright is basically a natural law property right. If you look at the Federalist Papers, incentivization is not mentioned at all. A respected property right is what the Federalist Papers talked about and that is what the courts have done. The Copyrights Act is not about incentivization; it’s a property-related thing. Moreover, the preambulatory clause in the text of Article I, Section 8, Clause 8 performs the same function as the Preamble to the Constitution, which is not to prescribe standards for laws to be constitutional.
Lazebnik: I don’t think everyone agrees with the history that you just laid out. Copyright does not stem from authors trying to get protection, but rather from the publishing guild. This was initially purely an economics-driven phenomenon and you can see that the U.S. copyright system is more economic-driven than natural law-driven because we give economic rights and we reject the moral rights.
Sylvain: One of the complications is that there are competing views on what the copyright laws are about, and we have enumerated a couple. One other I would make a strong claim for is that copyright laws embody agreements between strongly interested groups on how to frame their respective proprietary interests. This has changed over time. It changes based on the commercial interest of the company. One example is the extension of copyright terms to keep protected works out of the public domain—something that some people call the Mickey Mouse rule, for obvious reasons. Public law protections of works have changed over time, depending on the state of technology and the interests of parties. This is true in the context of areas to which I pay close attention: telecommunications and online video distribution. These are terms that are always modified based on the proprietary interest of the respective firms.
Lazebnik: Like privacy-related information and how technology has affected it, copyright law has been affected by technology as well and arguably has not kept pace with it.
Hansen: Absolutely, technology has been a problem.
Are agencies like the United States Patent and Trademark Office helping mitigate or exacerbate the patent problem?
Freilich: There are both positive and negative effects from actions the USPTO has taken. I know right now the office is very aware of a lot of criticisms that are being leveled at patents and at patent language. They have a quality initiative going on right now. They have a few pilot projects that are trying to address some of the particular criticisms. I believe there’s a glossary project going on with software patents, with the goal of better definitions for some of this vocabulary. The office is certainly aware, and they’re certainly trying, as are academics and policymakers.
How or when does information law intersect with social justice?
Sylvain: Communications is a social justice issue. Due to the development of current technologies, the opportunities for social integration are greater than they have been in the past. If we don’t try hard—if we’re not vigilant—about making sure that access is available, we may end up replicating the same sort of disparities that exist elsewhere.
Hansen: I actually agree that there is a social justice issue. What is the solution though? If you think everyone should have broadband, then we should have a food-stamps equivalent for broadband. In other words, access should be paid for by taxes—by all of us—rather than the individual service provider.
Sylvain: There are definitely political battle points in this debate, and network neutrality is one of them. I believe Hugh is arguing that net neutrality includes a subsidy for users at the expense of network operators, and I agree; it does. In my mind, however, that’s not a bad thing. Telecommunications operators have had for a long time the subsidy support of quasi-monopolies. Net neutrality is one effective check on that.
How does student understanding and use of technology affect your classroom instruction?
– Hugh Hansen
Reidenberg: I first started requiring my students to use technology in a computer lab here in 1993. I think that in order to understand the challenges that technology poses for law, students need to have some understanding of how technology works. The flip side is students are now using their devices as a distraction in the classroom. I think technology in the classroom can harm learning because students are not always paying attention.
Hansen: If you’re into technology, you want to be able to use it without any impediments. Anything that gets in the way of that usage is a problem. Copyright, for instance, is a problem. As more students become familiar with and use technology, the more they will enter with a kind of suspicion of things that would stop the free use of that technology.
Freilich: In teaching patent classes, I have encountered many students who have engineering backgrounds, who have Ph.D.s in science, or who have done work in a lab. Depending on the industry they have come from, this experience can influence how they view patents. Students coming out of the life sciences, for instance, can be very favorable toward strong patent rights. It’s interesting to see how these backgrounds predispose them to think a certain way about the legal questions.
Lazebnik: The more a student understands the technology, the stronger their viewpoint will be about a particular discussion that affects it. In my experience, however, most students don’t have that level of understanding. They view most of the technology that they use as kind of a black box: They feed it input and it gives them the output that they want. They don’t lean on their understanding of the technology. They rely more on their own general principles, whether they are more law-and-economics-oriented, more legal realists, etc.
Hansen: I’m happy to say that, however they come in, I’m able to convert them by the end of the course.
Lazebnik: Thankfully, I teach them after Hugh does.