Professor Paul Schwartz, an expert in privacy law and a Director of BCLT, has embarked on new projects that aim to shed light on telecommunications privacy and tax privacy. In his first article, “Reviving Telecommunications Surveillance Law,” forthcoming for the University of Chicago Law School Surveillance Conference, Professor Schwartz begins by examining the existing legal structure of telecommunications surveillance. He then goes on to argue that other kinds of secret telecommunications surveillance are occurring outside of that established legal structure and are challenging the current policy balance between civil liberties and effective law enforcement. Professor Schwartz develops the concept of “privacy theater,” which he uses to refer to measures that seek to heighten a feeling of privacy protection without enhancing such protection. He posits that the government’s ritualistic release of statistics about its surveillance practices results in a myth of privacy oversight, when in fact stronger congressional oversight, meaningful discussion with the executive branch, and informed public debate are necessary to establish true reform of the government’s telecommunications surveillance programs.

Professor Schwartz’s second new piece, “The Future of Tax Privacy,” reflects on the past, present, and future of the privacy of tax-related information. The article traces the development of tax privacy policy from the time when tax returns were posted on courtroom doors, to the expansion of tax privacy laws in the 1970s, and then to the extent and importance of tax privacy in an era where much of taxpayers’ information is already available through other sources. As for predictions for the future of tax privacy, Professor Schwartz notes that online security of tax information will become more critical as the amount of information that is collected through electronic filings increases and threats of data breaches become more serious.

Professor Deirdre K. Mulligan, an expert in information privacy law, and Assistant Professor Kenneth A. Bamberger, with support of the Rose Foundation for Communities and the Environment, and TRUST, are studying the ways in which corporations implement and invest in protections for personal information. They are performing in-depth, qualitative interviews with ten chief privacy officers of major companies, and are surveying a larger group in order to document the internal and external motivating factors that influence organizational decision-making around privacy.

Professors Mulligan and Bamberger also collaborated in authoring an article for the University of Chicago Law Review analyzing how different federal government agencies implement privacy law. In Privacy Decision Making in Administrative Agencies, they analyze compliance with the E-Government Act of 2002, which requires agencies to perform a privacy impact analysis when adopting certain new technologies or collecting personal data. In the context of adopting Radio Frequency Identification technology, the Department of State performed a cursory privacy analysis that was met with broad-based criticism, while the Department of Homeland Security was more deliberative and inclusive in its analysis. Comparative research on their approaches suggests that the culture of agencies has a profound effect on operationalizing privacy, and emphasizes the importance of having independent leadership in agencies' privacy offices, apolitical external oversight, and diverse perspectives involved in the policy process.

BCLT faculty and fellows have devoted substantial attention to the emerging privacy and security implications of ubiquitous computing. Broadly defined, these systems will be used by a wide variety of industries to increase efficiency, safety, and security. For example, networks of sensors could provide tracking of patients throughout a facility or help locate individuals after a fire or an emergency in a building. Professors Pamela Samuelson and Mulligan have contributed to this field by identifying security and privacy threats of sensor networks, and by attempting to map privacy law onto the technology. For instance, in Taking the "long view" on the Fourth Amendment: Stored Records and the Sanctity of the Home, Professor Mulligan and former Clinical Fellow Jack Lerner explore the Supreme Court’s Fourth Amendment analyses when considering technological advancements that directly enhance the ability of law enforcement to gather information, in the context of demand-response energy programs. These programs use information about energy pricing to encourage individuals to shift or reduce their use of electricity. In doing so, they enable more information collection about individuals’ activities in the home by the private sector, and indirectly by the government itself under current Fourth Amendment doctrine.

Finally, in The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident, Professor Mulligan and Aaron K. Perzanowski (JD 2006) explore the legal and economic incentives and decision making of a music label that, in attempting to protect content from piracy, released a CD that silently installed rootkit software on millions of users' machines, thereby making the machines vulnerable to attack.

Chris Jay Hoofnagle is an information privacy expert who focuses on consumer privacy law, and in particular, the challenges posed by security breaches and identity theft. He is conducting an in-depth review of hundreds of security breach notification letters that have been issued by various businesses and government entities since July 2003, when California required notice to the public when information is acquired without authorization. The goal of this research is to determine what notices are effective, but also to make recommendations for future state and federal-level laws that require notice of security breaches.

Earlier this year, Hoofnagle testified before the US Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security on security breach notification laws. In written testimony jointly authored with Professor Mulligan, the pair argued that security breach notification laws give businesses incentives to invest in security and to reduce the collection of sensitive personal information. Such laws are modeled on groundbreaking environmental protection laws, which require public reporting of toxic chemical leaks. Like their environmental counterparts, security breach notification laws around the country are laying the groundwork for a data-driven analysis of possible improvements in information and network security.

Hoofnagle is also exploring the emerging problem of “synthetic identity theft,” a form of financial fraud where a criminal creates an entirely new identity in order to obtain credit cards and services. In an article forthcoming in the Harvard Journal of Law & Technology, Hoofnagle proposes that statistical information on identity theft be released to the public to further elucidate this and other trends in the crime. Currently, reporting is required for suspicious transactions, but the focus has been on money laundering and terrorist activities, rather than financial fraud, which is growing in complexity, and causes billions of dollars worth of damages to the economy. Hoofnagle is also engaging in empirical studies of identity theft victims to better understand how the crime is committed, and how changes in authentication systems could help reduce its incidence.

In June 2007, Hoofnagle and Mulligan coordinated a day-long workshop to bring academics working in privacy together with advocates. A series of discussions (moderated by one academic and one advocate) were held with the goal of helping academics more fully develop the policy implications of their papers, while advocates would inform their work with research from privacy academics. A longer follow-up event is planned, with tutorials on the policymaking process and on emerging technologies.

Last year, Hoofnagle and Professor Joseph Turow (University of Pennsylvania Annenberg School for Communication) presented a report to the Federal Trade Commission at its decennial workshop on online privacy. The report, jointly authored with Professor Mulligan, Nathaniel Good (Ph.D., SIMS) and Jens Grossklags (Ph.D., SIMS), argued that consumers fundamentally misunderstand the rules of the online marketplace. Central in this confusion are the false meanings that consumers attach to the term, "privacy policy." The group argued that the Commission should police the term "privacy policy," and ensure that such policies have baseline standards for protecting data which are consistent with consumers' expectations.

Aaron Burstein is the TRUST and ACCURATE Research Fellow at the Samuelson Law, Technology Public Policy Clinic and the Berkeley Center for Law and Technology. Burstein's resesarch interests include security, transparency, privacy, and intellectual property. With support from the NSF-funded TRUST (Team to Research Ubiquitous Secure Computing) and ACCURATE (A Center for Correct, Usable, Reliable, Auditable, and Transparent Elections) centers, Burstein is studying these themes in the contexts of pervasive computing and electronic voting. He has also written about cybercrime and legal issues surrounding digital rights management systems.

Key in the ability to defend interconnected networks from vulnerabilities is research into improving defenses based on data about actual attacks. Burstein is examining ways to meet the urgent need of cyber-security researchers to study communications data and malicious software while respecting privacy, computer abuse, and intellectual property laws.

Burstein's works in progress include a broad effort to examine the role that security plays in technology policy debates, beginning with the example of network competition policy. Another project involves close collaboration with computer scientists to establish a legal and policy framework for interacting with attackers on the Internet.

Dr. Colin Bennett, a Professor of Political Science at the University of Victoria in Canada, was a Visiting Scholar at the Center for the Study of Law and Society from January to July 2007. Professor Bennett’s research focused on comparative analysis of information privacy protection policies, particularly on the differences between the American and European systems of privacy protection. Professor Bennett received his Bachelor’s and Master’s degrees from the University of Wales and his Ph.D. from the University of Illinois at Urbana-Champaign. From 1999-2000, he was a fellow with the Harvard Information Infrastructure Project at the Kennedy School of Government.

BCLT and BTLJ will hold their 12th annual symposium -- this year on Intellectual Property and Entrepreneurship -- at Boalt Hall School of Law, UC Berkeley, on March 7-8, 2008.

The Symposium will explore the role of intellectual property, in particular patent law, on entrepreneurs and entrepreneurship, bringing together speakers from a broad range of disciplines, including economics, law, business and other fields. We have also invited attorneys, entrepreneurs and other venture capitalists who have been actively involved in the information technology, biotechnology, pharmaceuticals, and green technology sectors to speak at the Symposium.

At the Symposium we will also introduce BCLT's project on IP & entrepreneurship that we launched this year with the generous support of the Ewing Marion Kauffman Foundation. We will discuss the current state of knowledge about the field of IP & entrepreneurship and our plans for empirical and theoretical research.

To that end, we will explore such questions as whether, when, and why entrepreneurs obtain patents, focusing on the role that patent rights play in decisions to invest in start-ups and how investors and entrepreneurs assess the scope and value of their own and other firms' patent rights in the course of deciding which business opportunities to pursue. We will also explore the challenges that entrepreneurs face when licensing or enforcing patents, looking at issues such as the effects of "patent trolls" on entrepreneurs and how patent thickets, standards, and the need to cross-license may present strong barriers to entry for entrepreneurs. We also plan to discuss the role patents play in an increasingly open and collaborative innovation environment, exploring the effects of patent rights on issues such as open source software, open standards, interoperability and employee mobility. Lastly, we will explore the timely question of whether entrepreneurs should care about patent reform initiatives.

In addition to BCLT faculty, Ashish Arora of Carnegie Mellon University, Heinz School; Margo Bagley of the University of Virginia School of Law; Dan Burk of the University of Minnesota Law School; Wes Cohen of Duke University School of Law; Rochelle Dreyfuss of New York University Law School; Rebecca Eisenberg of the University of Michigan Law School; Douglas Lichtman of UCLA Law School; Michael Meurer of Boston University School of Law; Arti Rai of Duke University School of Law; Suzanne Scotchmer of UC Berkeley, Boalt Hall; and Rosemarie Ziedonis of the University of Michigan Business School have all committed to presenting at the Symposium.

The Symposium will follow in the highly successful tradition of the annual symposiums on topics such as consumer protection,stem cell research, spyware, and digital rights management that BCLT and BTLJ have co-sponsored for many years now.

To get on the mailing list for the Symposium please contact David Grady.

The Fifth Annual Telecommunications and IP Conference will be co-sponsored with Seoul National University and held in Maui, Hawaii on February 15 - 16, 2008. Please contact David Grady for details on attending the conference. MCLE credit is available.

Patent law has undergone significant changes in the last year. Practitioners face evolving technology and growing globalism, plus the wake of recent major decisions. This year’s Advanced Patent Law Institute provides the analysis, tools, and practice strategies to help navigate this complex environment. Presented by the Berkeley Center for Law & Technology at Boalt Hall, the University of Texas School of Law, and the Stanford Program in Law, Science & Technology.

Highlights include:

• USPTO rules changes and initiatives
• Reexaminations and obviousness after KSR International v. Teleflex, Inc.
• Strategic patent prosecution
• Privilege waiver, “objective recklessness”—leading in-house and outside counsel on In re Seagate
• Contingency fees, billing structures, and portfolio monetization
• Forum selection—jury pools, local rules, and outcomes

The Conference on the Economics of Competition and Innovation – co-sponsored by BCLT and the Center for Competition Policy at Haas School of Business – will explore topics such as the design of IP rights; competition issues related to standards development organizations; theoretical analysis of the relationship between competition and IP; empirical studies of competition, investment in research and development, and the output of inventions; and analysis of law and economics of policies related to IP and research and development.

An elite group of patent law scholars gathered under the auspices of the Berkeley Center for Law & Technology for a Roundtable session discussing reform of the Court of Appeals for the Federal Circuit. Roundtable participants took on the challenge of describing and evaluating proposals that would significantly change how the Federal Circuit is structured, how it relates to the USPTO (in particular, how it reviews decisions of the PTO Board of Appeals and Interferences), and how it decides specific important issues in patent law. The discussion was wide-ranging and provided a forum for new and exciting ideas. Articles and notes from the Roundtable will be posted shortly to the BCLT web site and the Patently-O blog.

BCLT and the Center for Research on Chinese & American Strategic Cooperation (CRC), with the support of the Haas School of Business and the School of Information, held the Second Annual Berkeley-China Innovation & IPR Leadership Program at UC Berkeley. This two week program brought twenty-four high level Chinese policy makers and judges to Berkeley for classroom training, enterprise and institutional visits, and dialogue. Professor Peter Menell, Professor Robert Merges and BCLT Executive Director Robert Barr were among several UC faculty (including innovation management scholars David Teece and Henry Chesbrough) who taught classes and participated in discussions on how China can improve its intellectual property enforcement. Tom Campbell, the Dean of Haas School of Business, provided unique perspectives on China’s economic development and its impact on the US economy and society. AnnaLee Saxenian, Dean and Professor of the School of Information highlighted the importance of global knowledge flow and cooperation between developing countries and developed countries.

During the program, the Chinese guests visited Silicon Valley Bank, VeriSilicon, White & Case, Cisco Systems, and the Superior Court of California County of Santa Clara. They also attended seminars at SAP, IBM, Fish & Richardson, and Finnegan & Henderson.

The Chinese participants included Supreme and Provincial court judges as well as central and local government officials concerned with IPR strategy, policy, and enforcement. The Chinese delegation was led by Mr. Hu Zhijian, General Director of the Ministry of Science & Technology Policy/Regulation and System Reform Office, and Mr. Wu Xiaoming, Deputy General of National IPR Strategy Formulating Group, directly under Premier Wu Yi’s leadership.

The Center for Intellectual Property Law & Information Technology at DePaul University College of Law hosted the 7th Annual Intellectual Property Scholars Conference. BCLT co-sponsored this event along with the Stanford Program in Law, Science and Technology at Stanford Law School and the Benjamin N. Cardozo School of Law at Yeshiva University.

The IP Scholars Conference brought together academics from across the country to present their works-in-progress in order to benefit from the critique of colleagues.

This year Miriam Bitton (BCLT’s Microsoft Research Fellow) and Aaron Burstein (the TRUST and ACCURATE Research Fellow for BCLT and the Samuelson Clinic) presented their works-in-progress.

Ms. Bitton presented her paper “Is Information Patentable?” which explored whether information can and should be patentable. In her paper, Ms. Bitton suggests that patent law has consistently excluded information from patent protection. She shows how courts developed different information gatekeepers that aimed to keep information outside the patent system and in the public domain. However, because most of these gatekeepers were ill-defined, courts eventually sounded their death knell. The introduction of information technologies was the turning point in the treatment of information. Ms. Bitton’s article closely tracks the courts’ and USPTO’s struggles with such technologies, pointing to early and ongoing efforts to keep information outside the system -- a process in which all eventually gave up the fight. The article next turns to considering whether information should be patentable and suggests that the balance tilts in favor of keeping information outside the patent system.

Details about this year's conference can be found here.

The 6th annual conference web site (hosted by BCLT) includes all the conference papers and audio from every lecture are here.

Hilliary Elizabeth Creely, Ph.D.  

After completing undergraduate studies in Biology at George Washington University, Ms. Creely earned a Ph.D. in Molecular Biology, Cell Biology, and Biochemistry at Brown University. Her thesis work bridged topics in cell biology and neuroscience as she examined neuromuscular synaptogenesis and synapse stability. Upon completion of her doctoral work, she was awarded a Fulbright Scholarship to study evolutionary genetics at the Max-Planck-Institute in Leipzig, Germany. She began her studies at Boalt Hall in the fall of 2006 and plans to use her background in the life sciences to explore issues at the intersection of law and science policy.

As a California Institute for Regenerative Medicine (CIRM) fellowship award recipient, Ms. Creely is studying the unique legal and policy concerns engendered by neural stem cell research and the potential therapeutic treatments such research will permit. More specifically, she is exploring FDA regulation of extant neurological treatments to determine what new frameworks may be necessary to accommodate stem cell derived technologies and therapeutics. She is particularly interested in the rules governing the safety of both adult human test subjects and, unique to stem cell research, about the embryonic source material. Ms. Creeley is also examining questions related to government versus private funding of neural stem cell research, approval and regulation of research projects, and the possible consequences of different regulatory strategies on biomedical research in general. For these safety and regulatory questions she is examining not only in U.S. law and precedent but also perspectives from the international community, especially European Union member states. From this comparative study she hopes to develop a better understanding of how the law can best keep pace with exponential scientific development in the field of stem cell research

David Tolley  

As an undergraduate at Davidson College ( Davidson, NC), David Tolley created an interdisciplinary major in the medical humanities. He was most interested in examining crucial health care issues from the perspectives of the humanities and social sciences. After Davidson, he went to Yale University. There, he completed a master's degree in ethics at Yale Divinity School. He focused his studies in biomedical ethics and spent considerable time working as a researcher at Yale's Interdisciplinary Center for Bioethics and Yale's Institution for Social and Policy Studies. After finishing his master's degree, he spent one year teaching bioethics at the undergraduate level in addition to completing a research project focusing on unique ethical issues in end of life care research.

As a stem cell fellow, he is focusing on the unique intellectual property policies adopted by the California Institute for Regenerative Medicine (CIRM) governing state funded stem cell research. In contrast to intellectual property policies governing federally funded research, CIRM's policies require grantees who develop licensable technologies to share revenues with the State. Furthermore, exclusive licensees of technologies derived through CIRM-funded research are required to develop access plans for uninsured patients in California. Mr. Tolley is interested in evaluating the likely effectiveness of the CIRM policies from a policy standpoint. Tolley believes that the regulatory scheme is clearly aimed at ensuring a "return on investment" to California tax-payers who voted for the research initiative. But will it succeed? And is the regulatory scheme set up in ways that will maximize benefits to the State? Or will the regulatory scheme create roadblocks for researchers and industry? These and other questions will be explored by Mr. Tolley during his tenure as a Stem Cell Fellow.