We set the stage for our proposal in Part II, which briefly reviews the history behind Bilski and explains its open-ended holding and individualized approach. The difficulty of applying the Bilski ruling to different types of patent claims leads us to Part III, in which we call into question an accepted (if largely implicit) principle of patent law - that the lexical priority of statutory provisions in the 1952 Patent Act dictates a necessary logical sequence of invalidity tests. We reject this widespread assumption. There is nothing in the statute that requires this.

Indeed, in Part III we argue that in many ways the very idea of a sequence of discrete patentability requirements is conceptually misleading. Claims can be and often are rejected by the Patent Office for multiple reasons, suggesting that at least certain claims suffer from defects that transcend specific statutory validity requirements. We argue further that the policy underpinnings of various requirements overlap in complex ways, so that in reality patentability doctrine does not test for a series of discrete and independent qualities that are distinct from and mutually exclusive of each other. In the same way, transcendent qualities of an invention can influence multiple doctrines simultaneously, with pioneering inventions (due to both a liberal treatment under enablement, and a broad reach under infringement doctrines) being a prime example. This demonstrates again that there is not and should not be a strong separation between various patent law doctrines. Another argument along these lines recognizes that while patentability doctrines are not discrete entities, neither is “the invention” whose validity is being considered. Patent applicants routinely present multiple, overlapping claims, all of which cover fine-grained variations on a central inventive insight or advance. So it is inaccurate to visualize patentability as a stepwise series of tests applied to a single “invention.” It is not true for example that “invention X” passes § 101 and should thus proceed in logical sequence to be tested under § 102. One claim growing out of inventive insight X might present no § 101 problems at all, yet another claim in the same patent application might raise a difficult issue under this provision. Each claim, being a unique slice of the overall inventive insight, ought to be considered on its own terms, and in whatever order makes the most sense. Put another way, the mental model of a stepwise sequence of patentability determinations overlooks the highly granular nature in which different slices of the inventive concept are presented for validity testing.

This analysis is further developed in Section III.A. When a claim fails to pass muster under any single test of validity, that claim should be invalidated. No further tests should be applied. We describe this as “chain” theory of validity: once one link in the chain is broken, the claim fails, and there is no reason to proceed further. Beyond that point, any expenditure of resources on validity questions is inefficient. Pragmatic considerations enter at this point. Issues of cost, justiciability, and spillover effects are perfectly appropriate in determining the actual sequence in which validity tests are applied with respect to any particular patent claim. The non-linearity of patent validity tests, together with the principle of efficient administration, yields a simple rule: start with chain links that are, in general, easiest and cheapest to test, and when the chain fails, stop the process. That way, the costliest and most complex doctrines - the trickiest “links in the chain” - are often avoided, and in any event are put off until later. Therefore, § 101 should often be avoided, both at the Patent Office and in the courts. We justify this not only on efficiency grounds, but also by analogy to the Supreme Court rules of avoidance.

In Part IV, we apply this simple principle. It leads to several recommendations. First, though the PTO has good reasons for its longstanding practice of rejecting claims for multiple reasons, we recommend that §101 be used only as an exception or last resort even at the PTO. Next, we contend that the courts should proceed in a stepwise fashion, beginning with §§ 102, and 103, and 112, changing the order of doctrines as dictated by pragmatic considerations, and stopping as soon as a claim is conclusively invalidated. In all cases, the complex and costly process of deciding whether a claim presents patentable subject matter under § 101 should be deferred until very late in the process. Therefore, we recommend, courts should in effect hold off on the difficult task of evaluating claims under § 101 - ideally deploying the full § 101 analysis only when that is essential, i.e., when a claim passes muster under the other validity doctrines.

Drawing on Kant, Locke, and Rawls as well as contemporary scholars, Merges crafts an original theory to explain why IP rights make sense as a reward for effort and as a way to encourage individuals to strive. He also provides a novel explanation of why awarding IP rights to creative people is fair for everyone else in society, by contributing to a just distribution of resources. Merges argues convincingly that IP rights are based on a solid ethical foundation, and—when subject to fair limits—these rights are an indispensable part of a well-functioning society.

Harvard University Press (forthcoming 2011)

Drawing upon victim and impostor data now accessible because of updates to the Fair Credit Reporting Act, the data show that identity theft impostors supply obviously erroneous information on applications that is accepted as valid by credit grantors. Thus, the problem does not necessarily lie in control nor in more availability of personal information, but rather in the risk tolerances of credit grantors. An analysis of incentives in credit granting elucidates the problem: identity theft remains so prevalent because it is less costly to tolerate fraud. Adopting more aggressive and expensive anti-fraud measures is extremely costly and jeopardizes customer acquisition efforts.

These business decisions leave individuals and merchants with some of the externalities of identity theft. Victims sometimes spend their own money, and more often, valuable personal time dealing with identity theft externalities. This article concludes by reviewing several approaches to internalizing these costs. Popular approaches specify prescriptive rules to address particularly problematic practices in credit granting, such as using the Social Security number as a password for authentication. These approaches may lead to compliance-oriented approaches and reification. Several commentators have suggested negligence actions as a cure to identity theft, but uncertainty surrounding the duty of care would probably leave many consumers unremunerated. A strict liability regime is suggested because credit grantors are the least cost avoiders in the identity theft context, and because consumers cannot control the credit granting process nor insure against identity theft losses efficiently.

UCLA Journal of Law and Technology, p. 1, 2010

This “grounded” account should inform privacy reforms. While widespread efforts to expand consent mechanisms to empower individuals to control their personal information may offer some promise, those efforts should not proceed in a way that eclipses robust substantive definitions of privacy and the protections they are beginning to produce, or that constrains the regulatory flexibility that permits their evolution. This would destroy important tools for limiting corporate over-reaching, curbing consumer manipulation, and protecting shared expectations about the personal sphere on the Internet, and in the marketplace.

The Article concludes with two recommendations aimed at reducing the likelihood of companies deploying protection measures with known security vulnerabilities in the consumer marketplace. First, Congress should alter the Digital Millennium Copyright Act (DMCA) by creating permanent exemptions from its anti-circumvention and antitrafficking provisions that enable security research and the dissemination of tools to remove harmful protection measures. Second, the Federal Trade Commission should leverage insights from the field of human computer interaction security (HCI-Sec) to develop a stronger framework for user control over the security and privacy aspects of computers.

Pamela Samuelson
University of California, Berkeley - School of Law

The Supreme Court’s decision in Bilski v. Kappos made it clear that generalized methods of financial hedging are abstract ideas that are ineligible for patent protection. However, the Court left the framework for determining abstraction versus concreteness in future cases unclear, offered only “clues” for drawing such distinctions.

In this article, we attempt to provide the beginnings of such a framework. We start by discussing the clues we think are most likely to be useful to the Patent Office and the courts in developing a jurisprudence of abstractness as a disqualification from patent protection. We then discuss why, in light of these clues and in line with sound patent policy, business and service method innovations, while not categorically unpatentable, should still generally be excluded from patent protection as abstract ideas. Finally, we provide further support for this approach by suggesting that taking the clues of unpatentability seriously may facilitate administrative and judicial efficiency in reviewing patent claims when assessing whether they satisfy patent subject matter rules.

First, increasingly, privacy statutes create evolving standards of care, thus encouraging innovation for handling of data and avoiding the reification that can result from prescriptive, detailed regulation. For instance, the Fair Credit Reporting Act mandates an evolving “maximum possible accuracy” standard.

Second, in the direct marketing context, the US has imposed advertiser liability for violations of telemarketing, fax, and spam laws. This is a promising approach to address the use of difficult-to-identify and prosecute service providers that are responsible for illegal marketing campaigns.

Third, audit requirements for access to personal information has had a profound effect in encouraging industry and citizen policing of privacy violations. Audit logs have substantiated long-suspected privacy problems regarding “browsing” of files, and news media access to celebrities’ medical records.

Fourth, the US has briefly experimented with “data provenance,” a requirement that buyers of personal information exercise diligence to ensure against misuse of data. Data provenance responsibilities can create incentives to reduce gray and black market sales of personal information.

Finally, most federal privacy law acts as a floor of protections, allowing states to enact stronger rules. This has created a tension between state and federal governments, resulting in a leveling up of protections, because states (which tend to be more activist on privacy issues) can act where the US Congress is occupied with other issues.

NB: The final report, an executive summary of the final report, both by Douwe Korff and Ian Brown (et al), and one of two working papers, as well as two further country reports (on France and Germany) and a Comparative Chart, all by Douwe Korff, all also produced for the Comparative Study of Different Approaches to New Privacy Challenges in Particular in the Light of Technological Developments, can be found on SSRN.

Jennifer King
UC Berkeley School of Information; Berkeley Center for Law & Technology

Su Li
University of California, Berkeley- School of Law, Center for the Study of Law and Society

Joseph Turow
University of Pennsylvania - Annenberg School for Communication

Media reports teem with stories of young people posting salacious photos online, writing about alcohol-fueled misdeeds on social networking sites, and publicizing other ill-considered escapades that may haunt them in the future. These anecdotes are interpreted as representing a generation-wide shift in attitude toward information privacy. Many commentators therefore claim that young people “are less concerned with maintaining privacy than older people are.” Surprisingly, though, few empirical investigations have explored the privacy attitudes of young adults. This report is among the first quantitative studies evaluating young adults’ attitudes. It demonstrates that the picture is more nuanced than portrayed in the popular media.

In this telephonic (wireline and wireless) survey of internet using Americans (N=1000), we found that large percentages of young adults (those 18-24 years) are in harmony with older Americans regarding concerns about online privacy, norms, and policy suggestions. In several cases, there are no statistically significant differences between young adults and older age categories on these topics. Where there were differences, over half of the young adult-respondents did answer in the direction of older adults. There clearly is social significance in that large numbers of young adults agree with older Americans on issues of information privacy.

A gap in privacy knowledge provides one explanation for the apparent license with which the young behave online. 42 percent of young Americans answered all of our five online privacy questions incorrectly. 88 percent answered only two or fewer correctly. The problem is even more pronounced when presented with offline privacy issues – post hoc analysis showed that young Americans were more likely to answer no questions correctly than any other age group.

We conclude then that that young-adult Americans have an aspiration for increased privacy even while they participate in an online reality that is optimized to increase their revelation of personal data.

Lastly, the paper engages with the literature about the implications of the legalization of the global trading regime. The case study offered here suggests that legalization cannot simply be identified, as some prominent trade law scholars have argued, with the substitution of politics for principle, and with the leveling of power differences between states. It also suggests a new perspective on the debate over whether the WTO has a “constitutional” form, and if so, what this means. To date, those who claim a constitutional nature for the WTO have identified that nature with a move beyond politics. The analysis offered here suggests that if the WTO has a constitutional nature, it lies in its capacity to mobilize and channel, rather than to suppress or transcend, political disagreement.

• Reforming Sections 504 and 505 to reduce one of the greatest barriers to making fair use of copyrighted works: fears of excessive and unpredictable statutory damages and attorneys’ fees and costs. The unpredictability of these remedies can chill even the most intrepid follow-on users making the most conservative fair uses.

These reforms are limited in scope and general in application for an important reason: one of the great strengths of the American fair use doctrine is its flexibility in accommodating both new uses and new markets for copyright holders. This ability to adapt and change as needed to preserve copyright’s critical balance over time has been a hallmark of good copyright policy. As such, in many aspects it is most appropriate for
fair use to develop through court cases and community norms,2 which can flexibly take into account changes in technology, societal and community practices, and business models.

At the same time, fair use is frequently criticized for the tradeoff required by such flexibility: unpredictability.3 Because it can sometimes be difficult to predict with certainty whether a court will find a given use fair, and because the downside risk of high statutory damages, costs and fees is also unpredictable, follow-on creators can be prevented from making and distributing valuable works that rely on fair use.

There is no model that can completely remove unpredictability from a flexible system, though proper understanding of caselaw4 and community norms5 can help. This Report focuses on another important method for increasing predictability without unduly sacrificing flexibility: Congress can update the general Section 107 framework with targeted changes that promote consistency across jurisdictions, diminish key chilling effects on fair use, and increase efficiency by limiting the need for litigation, without putting in place specific parameters that might limit the flexibility of the doctrine over time. We have focused our suggested reforms on Congress’ ability to achieve these goals.

This article attempts to actuate a market for bank safety by comparing identity theft victim data with government statistics used to measure the relative size of financial institutions. It envisions a future when this market incentivizes financial services firms to explicitly compete to reduce the likelihood that customers will become victims of identity theft or other frauds. In a world of competition in bank safety, consumers who put a premium on avoiding fraud could reward the most proficient firms with their loyalty.

This article concludes that the available data, while weakened by several methodological concerns, do show that certain banks, large and small, have different identity theft footprints. Other discoveries were made as well. First, if present trends continue, there will be a substantial upswing in identity theft complaints to the Federal Trade Commission in 2008. Second, over a three-year period, a small group of companies accounted for almost 50 percent of identity theft incidents. Focusing interventions on this small group of companies could have a profound effect on incidence of identity theft. Finally, non-banking institutions, such as telecommunications companies, have an enormous identity theft footprint; in our highly dependent credit markets, impostors may be using these companies as stepping stones for attacks against banks.

Producing new pharmaceutical products – and then verifying their effectiveness and safety – is both expensive and risky. Substantial financial incentives are essential to induce firms to engage in this activity. The current patent system provides those incentives by empowering the firms that develop novel and nonobvious pharmaceutical products to prevent others from making, using, selling, or importing those products. Armed with that authority, the firms are able to sell the products for prices much higher than the costs of manufacturing them. The resultant profits provide the carrots necessary to prompt the firms to engage in the inventive activity in the first instance.

A prize system would work quite differently. Instead of authorizing drug developers to exclude competitors, the government would pay successful developers. Other firms, including generic drug manufacturers, would be free to make and sell the drugs in question. The resultant competition would keep drug prices close to the modest costs of manufacturing them. The money necessary to run such a system would come, not from consumers (or their insurers), but from taxpayers.

Would a prize system of this general sort be better than the patent system? More to the point, would it be more effective in alleviating the health crisis in the developing world? A substantial body of literature addresses those questions. In this paper, we marshal and critically evaluate that literature – and add to it a number of new arguments of our own.

The discussion is organized as follows. In Part I, we explore the major potential strengths and weaknesses of prize systems. In Part II, we consider how a prize system focused on the production of drugs and vaccines aimed at communicable diseases might be designed so as to capitalize on its strengths and mitigate its weaknesses.

The courts and the Patent Office successfully navigated the line between technological and non-technological fields for over two centuries. Patent systems throughout the world continue to do so. Reestablishing technological advance as the touchstone for patent protection in the United States will help to restore confidence in, the efficacy of, and the logic of this vital institution.

This survey finds that Americans want openness with marketers. If marketers want to continue to use various forms of behavioral targeting in their interactions with Americans, they must work with policymakers to open up the process so that individuals can learn exactly how their information is being collected and used, and then exercise control over their data. We offer specific proposals in this direction. An overarching one is for marketers to implement a regime of information respect toward the public rather than to treat them as objects from which they can take information in order to optimally persuade them.

This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism - and how not to.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices - including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems - and also the promise - of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally - and historically-grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

Recognizing these patterns, the authors undertook in 2006 to survey the range of approaches and perspectives on patent case management, foster discussion and analysis of patent case management techniques, and develop an authoritative guide for judges, law clerks, practitioners, and patent and civil procedure professors and scholars. Given the dynamism of the patent system and patent litigation, the authors plan to revise the Guide on a biennial basis.

If we move from the past of tax law to the present, tax law looks much like other privacy statutes. The Tax Reform Act of 1976 removed the authority of the President to make rules for release of tax information. Its Section 6103 established a general rule of confidentiality with Congress to set exceptions through this rule by statute. A flood of disclosure exceptions have been enacted since 1976 with requirements based on how difficult Congress thinks it should be for a given party to obtain the tax information for a specific purpose. Disclosure of tax information is now permitted for the purposes such as civil litigation, criminal litigation, child support obligations, and terrorism prevention.

Regarding predictions about the future, it is likely that tax privacy as regulated under the Tax Code will be both less and more important in the future. It will be less important because of broad governmental and public access to financial and other information of the kind that taxpayers file. At the same time, one aspect of tax privacy will be more important than before. Threats of data breaches and data leaks make tax return security more significant. For one thing, the IRS increasingly collects tax return information through e-filing. Increasingly, tax returns may also be prepared by U.S. firms that outsource work internationally and send tax information around the globe electronically. Tax preparation software is subject to hacks and virus attacks.

Both of these predictions suggest a final point. If we return to the policy arguments for and against tax privacy, there has been a shared assumption of a special status, an exceptional status for tax information. Yet, today, the same information found in tax returns is accessible through other legal statutes. Moreover, tax information in the electronic age is subject to the same vagaries of data security as other data. One can therefore predict that the privacy of tax information will not only be both more and less important in the future. It will also increasingly be subject to the same kind of forces, legal and otherwise, as other personal information.

The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities.

Parts I through V mainly provide a positive account of how fair use has been adjudicated in a variety of contexts and suggestions about factors that should be given greater or lesser weight in certain fair use policy clusters. Its articulation of the policy-relevant clusters into which the fair use cases typically fall should not, however, be understood as attempting to limn the outer bounds of fair use or to foreclose the development of new policy-relevant clusters. Part VI offers a more normative account of fair use as an integral and essential part of U.S. copyright law that can, in fact, encompass the wide range of fair uses discussed in the Article. It also recaps the key lessons from this Article's qualitative assessment of the fair use case law and points to some encouraging trends in recent cases.

A gulf exists between California consumers' understanding of online rules and common business practices. For instance, Californians who shop online believe that privacy policies prohibit third-party information sharing. A majority of Californians believes that privacy policies create the right to require a website to delete personal information upon request, a general right to sue for damages, a right to be informed of security breaches, a right to assistance if identity theft occurs, and a right to access and correct data.

These findings show that California consumers overvalue the mere fact that a website has a privacy policy, and assume that websites carrying the label have strong, default rules to protect personal data. In a way, consumers interpret "privacy policy" as a quality seal that denotes adherence to some set of standards. Website operators have little incentive to correct this misperception, thus limiting the ability of the market to produce outcomes consistent with consumers' expectations. Drawing upon earlier work, we conclude that because the term "privacy policy" has taken on a specific meaning in the minds of consumers, its use should be limited to contexts where businesses provide a set of protections that meet consumers' expectations.

In 2007, fraud events where the victim could identify the institution associated with the incident, were concentrated among a relatively small number of companies. Just ten companies accounted for 30% of events. Verizon was identified by victims more than any other company as being targeted by impostors to commit fraud. AFNI, a collections agency, was next in total number of events. Bank of America improved dramatically over its 2006 numbers, while ING Bank and American Express remained top performers among large institutions.

Studies have shown that most consumers oppose the sale of personal information. Unfortunately, most consumers are under the misimpression that a company with a "privacy policy" is barred from selling data. To learn more about information selling, the authors, using a California privacy law, made requests to 86 companies for a disclosure of information sharing practices. The results show that while many companies have voluntarily adopted a policy of not sharing personal information with third parties, many still operate under an opt-out model that is inconsistent with consumer expectations, and others simply did not respond to the request. Based on these results, the authors propose several public policy approaches to bringing business practices in information sharing in line with consumer expectations.

Professor Alan Westin has pioneered a popular "segmentation" to describe Americans as fitting into one of three subgroups concerning privacy: privacy "fundamentalists" (high concern for privacy), "pragmatists" (mid-level concern), and the "unconcerned" (low or no privacy concern). When compared with these segments, Californians are more likely to be privacy pragmatists or fundamentalists, and less likely to be unconcerned about privacy. Fundamentalists were much more likely to be correct in their views of privacy rules. In light of this finding, we question Westin's conclusion that privacy pragmatists are well served by self-regulatory and opt-out approaches, as we found this subgroup of consumers is likely to misunderstand default rules in the marketplace.

CDBs make available a wide variety of personal information, from arrest and court records to notice that a suspect has opened a private mailbox. Access to private sector databases has significantly altered the balance of power between law enforcement and the individual. This new power has been made possible by the confluence of fast network connections; the availability of public records, both electronic and paper, that are rich with personal information; a regulatory environment that has turned a blind eye to private sector collection of personal information for marketing and other purposes; and the alacrity of companies that have become very profitable from selling personal data to the government.

This article summarizes the findings of three years of research into the relationship between CDBs and the federal government. The federal Freedom of Information Act was employed to obtain over 1,500 documents from nine federal agencies concerning ChoicePoint and other CDBs. Findings are presented from the requests, and concerns are raised regarding law enforcement access to personal information.

The documents led to six major findings. First, the documents show that law enforcement can quickly obtain a broad array of personal information about individuals. Second, although broad requests for documents were filed, there was almost no evidence of controls to prevent agency employees from misusing the databases. It appears as though auditing employee use of the databases is either impossible or simply not done. Third, the database companies are extremely solicitous to the government and actually design the databases for law enforcement use. Fourth, ChoicePoint expanded significantly in 2000 by starting to acquire and sell personal information of non-citizens. That discovery has led to strong international dissent. Fifth, many of the contracts with CDBs are sole-sourced, meaning the contracts are not open to competitive bidding. Sixth, the FBI has a secret, sole-source contract with ChoicePoint to develop an information service prototype.

Based on these documents, the author concludes that the Privacy Act should apply to CDBs. The Privacy Act of 1974 establishes a comprehensive set of Fair Information Practices for government collection of personal information, but does not substantially affect the data practices of these private companies. Because of this lack of coverage, government entities have performed an end-run around the protections of the Privacy Act by allowing the private sector to amass troves of personal information that the government would ordinarily not be allowed to collect. Essentially, commercial data brokers are big brother's little helpers - private sector companies that have escrowed personal information that is customized for law enforcement and other government agencies.

The author also concludes that public policy makers should not draw distinctions between commercial and government collection of personal information. Libertarians and conservatives have employed persuasive arguments to stave off privacy regulation that affects the commercial sector. They have argued that government collection, use, and disclosure of information presents more risk than commercial collection because the government has the power to arrest, imprison, and even to execute citizens. But this article shows that this distinction between the risks of government and commercial privacy risk is no longer tenable. Commercial actors provide personal information to the government in a number of contexts, and often with astonishing alacrity.

Finally, policymakers should revisit policies surrounding access to public records. Much of the personal information made available to law enforcement originates from public records. In a variety of contexts, the government compels individuals to reveal their personal information, and then pours it into the public record for anyone to use for any purpose. The private sector has collected the information, repackaged it, and brought it back to the government full circle. While public records are supposed to provide a window for a citizen to check abusive government activities, increasingly, they are used to leverage more control for powerful institutions against the common man.

The author hypothesizes that if lending institutions reported limited information about identity theft, it would reveal that identity theft is both more prevalent and economically damaging than currently acknowledged, in part because of the rise of synthetic identity theft, a form that cannot be measured by victim surveys because they are unaware of the crime. Furthermore, the disclosure requirement would birth an anti-identity theft market, and the prevalence and severity of the crime would decrease dramatically as institutions compete to offer the safest financial products to consumers.

This Article begins by examining governmental data mining. In Part II, this Article reviews widely held views about the necessary safeguards for the use of data mining. In Part III, this Article considers dataveillance by private corporations and how they have compiled rich collections of information gathered online in the absence of a robust legal framework that might help preserve online privacy.

This Article then discusses some of the techniques that individuals can employ to mask their online activity as well as existing and emerging technological approaches to preventing the private sector or government from linking their personal information and tracing their activities. This Article concludes by briefly considering three topics: (1) whether and how to regulate the potential impact of identity management systems on counterterrorism efforts; (2) the requirements of transparency and understanding of the underlying models used in either data mining or identity management systems as a necessary prelude to the creation of rules on appropriate access and use; and (3) the need for research in several further areas.

Such rational inquiry about telecommunications surveillance is, however, largely precluded by the haphazard and incomplete information that the government collects about it. This Article evaluates the main parts of telecommunications surveillance law and the statistics about their use. The critical statutory regulations are (1) the Wiretap Act, (2) the Pen Register Act, (3) the Stored Communications Act, and, for foreign intelligence, (4) the Foreign Intelligence Surveillance Act, and (5) the different provisions for National Security Letters (NSLs).

Other parts of the surveillance landscape represent an even greater expanse of blank spaces on the legal map. There are a number of "semi-known unknowns" (to coin a phrase); these are kinds of telecommunications surveillance about which only limited public information exists - this surveillance also occurs outside a detailed legal framework.

This Article concludes with the development of the concept of "privacy theater." Currently, the value of the collection of telecommunications statistics is largely ritualistic. It serves to create a myth of oversight. This Article proposes that we go beyond myth and re-dedicate ourselves to the task of creating a telecommunications surveillance law that minimizes the impact of surveillance on civil liberties and maximizes its effectiveness for law enforcement.

In this paper, we ask why. We first explore why both process requirements and traditional means of political oversight are often weak tools for ensuring that policy reflects privacy commitments. We then consider what factors might, by contrast, promote agency consideration of privacy concerns.

Specifically, we compare decisions by two federal agencies - the Department of State and the Department of Homeland Security - to use RFID technology, which allows a wireless-access data chip to be attached to or inserted into a product, animal, or person. These two cases suggest the importance of internal agency structure, culture, and personnel, as well as alternative forms of external oversight, interest group engagement, and professional expertise, as important mechanisms for ensuring bureaucratic accountability to the secondary privacy mandate imposed by Congress.

The analysis speaks to debates in both public administration and privacy protection. It implicates disputes over the efficacy of external controls on bureaucracy, and the less-developed literature on opening the black box of administrative decisionmaking. It further offers insight into pre-conditions necessary to advance privacy commitments in the face of social and bureaucratic pressure to manage risk by collecting information about individuals. Finally, it offers specific proposals for policy reform intended to promote agency accountability to privacy goals.

A reverse notice and takedown regime would achieve for the anti-circumvention rules a comparable symmetry with the balance embedded in the ISP safe harbor rules. It would also effectuate the nascent, but not fully realized, legislative intent to permit public interest uses of technically protected digital content, while at the same time protecting copyright owners against circumvention of TPMs that would facilitate or lead to massive infringements. In the U.S., the most likely way to achieve this goal is through judicial interpretation of the anti-circumvention rules through case by case adjudication. In the EU, by contrast, member states could implement a reverse notice and takedown regime in the course of fulfilling their obligations under Article 6(4) of the Copyright Directive, which requires them to ensure that users of technically protected works can exercise certain public interest exceptions. Nations that have yet to implement the WCT may find our proposed reverse notice and takedown regime provides a far more balanced way to comply with the treaty than the approach being promoted by U.S. trade negotiators

Thirty years after enactment of the '76 Act, with the benefit of considerable experience with computer and other advanced technologies and the rise of amateur creators, it may finally be possible to think through in a more comprehensive way how to adapt copyright to digital networked environments as well as how to maintain its integrity as to existing industry products and services that do not exist outside of the digital realm.

The final section of the article shows that although courts in some cases, such as those involving parts numbering systems, have managed to reach sound results by invoking other copyright doctrines (such as lack of originality), courts should have engaged in straightforward applications of section 102(b)'s exclusion of systems, as some more recent cases have done. The mistakenly narrow interpretation given to Baker by the Nimmer treatise has also led some courts to misconstrue section 102(b) by protecting coding systems and yoga sequences when these elements should be beyond the scope of copyright protection. The article calls for renewed attention to the eight words of exclusion in section 102(b) and to the policies that underlie those exclusions.

One way this phenomenon has emerged in the physical world is in the form of non-possessory property interests called "conservation easements."4 A landowner who sells or donates a conservation easement, typically to a government entity or a non-profit organization devoted to conservation, remains in possession of her land but is required, along with successive owners, [*pg 25] to use the land only in ways that are consistent with the terms of the easement.5 For example, a conservation easement might require that land be maintained as a wildlife habitat, or that it be open for outdoor recreation by the public, or that it be preserved as open space, free of buildings that might interfere with the public's scenic enjoyment of an area. The goal is to promote specific conservation purposes6 by severing the right to possess land from the right to use it in ways that disserve those purposes.

In the cultural context, advocates for a rich and expanding public domain are increasingly deploying voluntary intellectual-property-based techniques to achieve their goals.7 Most notable to date have been the efforts of the Free Software Foundation (FSF) to promote the use of the GNU General Public License (GPL), a software license that allows free copying and adaptation of copyrighted computer software, but only on the condition that resulting copies and adaptations are licensed on the same generous terms and accompanied by their source code.8 Thousands of software programs, including the Linux operating system, are licensed under the GPL.9 Recently, the nonprofit Creative Commons has promoted similar licenses for other types of creative works -- photos, film, music, et cetera.10

In essence, these licenses separate the right to copy and adapt copyrighted works from the right to exclude others from the benefits of further copying and adaptation -- much as conservation easements separate the right to possess and enjoy land from the right to deny the public its potential conservation benefits. Although works covered by the GPL or Creative Commons licenses are not technically in the public domain (at least as narrowly defined to include only those works that are not subject to any intellectual-property-based [*pg 26] restrictions),11 they are available to the public for many uses that copyright law would otherwise forbid, just as works covered by conservation easements may be open to the public -- or at least dedicated to purposes that ultimately benefit the public -- in ways that private property typically is not.12

Conservation easements have been praised for "conform[ing] to the general American desire for non-compulsory, voluntary solutions to land use problems . . . ."13 Efforts to harness intellectual property rights to promote open access to creative and innovative works have similarly been lauded as "invigorating the public domain with a new dynamism stemming from private action."14 But there have long been critics of conservation easements,15 and the recent property turn in cultural environmentalism has begun to encounter criticism of its own.16

Conservation easements typically violate several common-law rules governing the formation and enforceability of non-possessory interests in land. Although the common-law obstacles have been eliminated by state statutes authorizing conservation easements, some critics have challenged the wisdom of those statutory authorizations, arguing that the common-law rules served important purposes. Two justifications for the common-law rules are central to this discussion: first, ensuring notice to future landowners and affected third parties; and second, preserving the flexibility necessary to make wise resource-use decisions in the future. These justifications resonate, more generally, with a growing literature praising standardization and consolidation of property rights.17 Conservation easements -- which complicate and fragment property [*pg 27] rights in land -- are in tension with those ideals. Critics argue that the GPL and Creative Commons licenses are as well.18

This article considers these tools of cultural environmentalism in light of objections to conservation easements and more general concerns with complicated and fragmented property rights. It concludes that the cultural context does present problems analogous to those encountered by conservation easements, but that the problems stem in large part from the background law of copyright. The lessons gleaned from the conservation easement experience can usefully be applied to improve and shape the future development of the GPL and Creative Commons licenses. But they might also help to solve some of the problems caused by copyright law itself.

Link: http://www.law.duke.edu/shell/cite.pl?70+Law+&+Contemp.+Probs.+23+%28spring+2007%29

This Review's Part II looks at two additional aspects of Heymann's vision of future uses of intelligence to thwart terrorism. In Part II.A., we describes the contours of data mining, a technique of intelligence analysis that Heymann advocates. Although Heymann notes that data mining is likely to have an adverse effect on privacy, he does not develop detailed safeguards in response. A Pentagon blue ribbon panel, the Technology and Privacy Advisory Committee (TAPAC), has, however, developed a recommended framework for governmental use of data mining techniques, and we assess the TAPAC recommendations. Finally, in this Review's Part II.B., we turn to an important policy discussion related to data mining: how can the USIC better disseminate intelligence within a proposed new intelligence network? We sketch the proposed form of the new intelligence network and analyze four important legal and policy questions that it raises.

The Deck is drawn upon my experience as a lawyer working on consumer protection in Washington, DC. Where possible, I have provided specific examples of denialism, but in many cases, these arguments are used only in closed negotiations. Some who read them find the examples humorous, while others find it troubling. But all who read the Washington Post will recognize these tactics; they are ubiquitous and quite effective.

This taxonomy provides a roadmap for consumer advocates to understand the resistance they will face with almost any form of consumer reform. I hope to expand it to include retorts to each argument in the future.