Intellectual Property Law

Erik Stallman, a law professor at the University of California, Berkeley, noted that Judge Gregory Katsas seemed to want to bifurcate the standards into different groups: Incorporated standards that impose a clear legal duty are more likely to be fair use, while those that are just explanatory may fall on the side of stronger copyright protection.

Mark Cohen, senior fellow and director of the Asia IP Project at the Berkeley Center for Law and Technology, says while the measure is warranted in some cases, it could undermine US standing in global trade rules and lead to retaliation against US companies from other governments.

“Some students have come to do their LL.M. here because their country is in an earlier phase of developing their technology-related laws and find it helpful to see how the U.S. has approached similar issues,” says Wayne Stacy, executive director at Berkeley Law’s Center for Law and Technology in California. “Other students come from countries where the body of technology law has gone in a different direction than the U.S. and they appreciate learning about the contrast.”

“This data tracking is…it means that people who are pregnant and seeking access to medical care (are) extraordinarily vulnerable to having their data sold to vigilantes as well as provided voluntarily to law enforcement or obtained by law enforcement across state lines,” Professor Rebecca Wexler, a  co-faculty director of the Berkeley Center for Law & Technology, told the U.S. House Judiciary Committee.

Megan Graham, of the Samuelson Law, Technology & Public Policy Clinic, says any battle between the tech companies and governments about data collection should be done in public, so that regular people and privacy advocates can have their say. “Google’s voice is obviously important in the discussion because they have the data and they are the ones running he searches but their interests are not necessarily the same as the general public, or people who are concerned about privacy rights,” she says. 

“We live our lives online, we leave digital breadcrumbs of our prior activities, and of course those are going to be caught up in abortion investigations,” says Professor Catherine Crump, director of the Samuelson Law, Technology and Public Policy Clinic. Tech companies will almost certainly comply with state law and hand over information from legal court orders, but they should be transparent with their users and the public when they do and disclose how many abortion-related court orders they get, she adds.

“If you have a period tracking app, you should delete it,” says Professor Catherine Crump, director of the Samuelson Law, Technology & Policy Clinic. “Tech companies like everyone else has to comply with law and they may not have a choice about what data they collect, what data they are forced to disclose. The law enforcement agency gets a warrant and serves it on Google and asks for location information and it’s a valid warrant. Google is going to have a hard time not complying with that.”

Professor Rebecca Wexler, a faculty co-director of the Berkeley Center for Law & Technology, talks about how big and small tech companies will need to have a response to the question of what to do with users’ data if new laws try to restrict access to information about abortion and other reproductive services in the post-Roe environment. “Anything they do or don’t do, it’s going to be a choice with consequences. It also means they’ve got a lot of power at this point,” she says. “They have power to reclaim some of the privacy from government intrusion that Roe once guaranteed, and that the court has just eviscerated.”

While much is written about the potential promise of quantum computers, “their simpler cousins — quantum sensors — are here now and improving at a rate that demands urgent attention,” writes Professor Chris Hoofnagle and a co-author. “Strategists must understand the new capabilities that quantum sensing will provide and start planning countermeasures today.”

Professor Rebecca Wexler discusses the role of big tech in a post-Roe world, and why the fight over sensitive data will be of essence to protect patients.