Featured Article: Hacktivism and the First Amendment: Drawing the Line Between Cyber Protests and Crime

Volume 27 of the Harvard Journal of Law & Technology features a student Note by Xiang Li that addresses some of the First Amendment implications of "hacktivism," which Li broadly defined as the “combination of grassroots political protest with computer hacking through the nonviolent use of illegal or legally ambiguous digital tools [to pursue] political ends."

Li's Note, Hacktivism and the First Amendment: Drawing the Line Between Cyber Protests and Crime, argues that while hacktivist activities my not squarely fit within the purview of the First Amendment currently, over time these activities may evolve to a point in which a "categorical prohibition on all forms of hacktivism may sweep up socially productive uses of cyberattacks as a form of protest."

A portion of the Note, with footnotes redacted, appears below:

Does hacktivism constitute a legitimate instrument of protest in twenty-first century America? This Note examines the viability of invoking the First Amendment as a defense to the prosecution of  hacktivism, specifically in the form of cyberattacks, under the Computer Fraud and Abuse Act (“CFAA”). Although existing forms of cyberattacks are unlikely to merit First Amendment protection, this Note argues that hacktivism may evolve over time to fall within the purview of First Amendment protection. A categorical prohibition on all forms of hacktivism may sweep up socially productive uses of cyberattacks as a form of protest.

The argument proceeds in four parts. Section II describes the various forms of cyberattacks currently used by hacktivists, as well as the potential criminal liability for hacktivism under the CFAA. Section III examines the primary obstacle to, and secondary arguments against, invoking First Amendment protections for hacktivism as free speech. Section IV presents two of the central premises underlying the rise of hacktivism and discusses the need to reconceptualize what is currently a privatized cyberspace to make room for public forums that can provide specific access to a target’s online property. Additionally, Section IV discusses the possible evolution of hacktivism to include cyberattacks that generate pop-up windows to communicate protest messages. Such a mechanism could raise the possibility of First Amendment protection whereby the cyberattack constitutes protected speech and the pop-up window qualifies as a public forum, akin to a “cyber sidewalk” adjacent to the target’s online property. Section V concludes.

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Massive round-up of new law articles, covering privacy, Fourth Amendment, GPS, cell site, cybercrime, big data, revenge porn, drones, and more

Spencer, Shaun B., The Surveillance Society and the Third-Party Privacy Problem (2013). South Carolina Law Review, Vol. 65, No. 2, 2013. Abstract: 

This Article examines a question that has become increasingly important in the emerging surveillance society: Should the law treat information as private even though others know about it? This is the third-party privacy problem. Part II explores two competing conceptions of privacy — the binary and contextual conceptions. Part III describes two features of the emerging surveillance society that should change the way we address the third-party privacy problem. One feature, “surveillance on demand,” results from exponential increases in data collection and aggregation. The other feature, “uploaded lives,” reflects a revolution in the type and amount of information that we share digitally. Part IV argues that the binary conception cannot protect privacy in the surveillance society because it fails to account for the new realities of surveillance on demand and uploaded lives. Finally, Part V illustrates how courts and legislators can implement the contextual conception to deal with two emerging surveillance society problems — facial recognition technology and geolocation data.

Kimberly N. Brown, Anonymity, Faceprints, and the Constitution, 21 Geo. Mason L. Rev. (forthcoming Winter 2014).

Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57 (2014). Abstract:

Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is. 

This Article makes two overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with the creation of knowledge, that regulation should draw First Amendment scrutiny. 

In combination, these claims show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to privacy debates, data is speech.

Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55 Ariz. L. Rev. 997 (2014). Abstract:

The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy “burners” (prepaid phones) or “freedom phones” from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use Tor to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some “live off the grid” and cut off all contact with the modern world. 

These are all examples of what I call privacy protests: actions individuals take to block or to thwart government surveillance for reasons unrelated to criminal wrongdoing. Those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives. How do we tell the difference between privacy protests and criminal evasions, and why does it matter? Surprisingly scant attention has been given to these questions, in part because Fourth Amendment law makes little distinction between ordinary criminal evasions and privacy protests. This Article discusses the importance of these ordinary acts of resistance, their place in constitutional criminal procedure, and their potential social value in the struggle over the meaning of privacy.

Conor M. Reardon, Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments, 63 Duke Law Journal 735-779 (2013). Abstract:

In a recent spate of highly publicized incidents, citizens have used cell phones equipped with video cameras to record violent arrests. Oftentimes they post their recordings on the Internet for public examination. As the courts have recognized, this behavior lies close to the heart of the First Amendment. 

But the Constitution imperfectly protects this new form of government monitoring. Fourth Amendment doctrine generally permits the warrantless seizure of cell phones used to record violent arrests, on the theory that the recording contains evidence of a crime. The Fourth Amendment inquiry does not evaluate a seizing officer’s state of mind, permitting an official to seize a video for the very purpose of suppressing its contents. Moreover, Supreme Court precedent is typically read to ignore First Amendment interests implicated by searches and seizures. 

This result is perverse. Courts evaluating these seizures should stop to recall the Fourth Amendment’s origins as a procedural safeguard for expressive interests. They should remember, too, the Supreme Court’s jurisprudence surrounding seizures of obscene materials—an area in which the Court carefully shaped Fourth Amendment doctrine to protect First Amendment values. Otherwise reasonable seizures can become unreasonable when they threaten free expression, and seizures of cell phones used to record violent arrests are of that stripe. Courts should therefore disallow this breed of seizure, trusting the political branches to craft a substitute procedure that will protect law-enforcement interests without doing violence to First Amendment freedoms.

Elizabeth Friedler, Protecting the Innocent—the Need to Adapt Federal Asset Forfeiture Laws to Protect the Interests of Third Parties in Digital Asset Seizures, Cardozo Arts & Entertainment Law Journal, Volume 32, Issue 1 (2013).

Jana Sutton, Of Information, Trust, and Ice Cream: A Recipe for a Different Perspective on the Privacy of Health Information, 55 Ariz. L. Rev. 1171 (2014). Abstract:

The concept of privacy is inescapable in modern society. As technology develops rapidly and online connections become an integral part of our daily routines, the lines between what may or may not be acceptable continue to blur. Individual autonomy is important. We cannot, however, allow it to suffocate the advancement of technology in such vital areas as public health. Although this Note cannot lay out detailed instructions to balance the desire for autonomy and the benefits of free information, it attempts to provide some perspective on whether we are anywhere close to striking the right balance. When the benefits of health information technology are so glaring, and yet its progress has been so stifled, perhaps we have placed far too much value—at least in the health care context—on individual privacy.

Kevin S. Bankston & Ashkan Soltani, Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jones, 123 YALE L.J. ONLINE 335 (2014). Abstract:

In United States v. Jones, five Supreme Court Justices wrote that government surveillance of one’s public movements for twenty-eight days using a GPS device violated a reasonable expectation of privacy and constituted a Fourth Amendment search. Unfortunately, they didn’t provide a clear and administrable rule that could be applied in other government surveillance cases. In this Essay, Kevin Bankston and Ashkan Soltani draw together threads from the Jones concurrences and existing legal scholarship and combine them with data about the costs of different location tracking techniques to articulate a cost-based conception of the expectation of privacy that both supports and is supported by the concurring opinions in Jones.

Schmitt, Michael N. and Vihul, Liis, The International Law of Attribution During Proxy 'Wars' in Cyberspace (January 30, 2014). 1 Fletcher Security Review (2014 Forthcoming). Abstract:

The article examines the use of non-State actors by States to conduct cyber operations against other States. In doing so, it examines attribution of a non-State actor's cyber operations to a State pursuant to the law of State responsibility, attribution of a non-State actor's cyber armed attack to a State for the purposes of a self-defense analysis, and attribution of cyber military operations to a State in the context of determining whether an international armed conflict has been initiated. These three very different legal inquiries are often confused with each other. The article seeks to deconstruct the issue of attribution into its various normative components.

Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms, 55 B.C. L. Rev. 93 (2014). Abstract:

The rise of “Big Data” analytics in the private sector poses new challenges for privacy advocates. Through its reliance on existing data and predictive analysis to create detailed individual profiles, Big Data has exploded the scope of personally identifiable information (“PII”). It has also effectively marginalized regulatory schema by evading current privacy protections with its novel methodology. Furthermore, poor execution of Big Data methodology may create additional harms by rendering inaccurate profiles that nonetheless impact an individual’s life and livelihood. To respond to Big Data’s evolving practices, this Article examines several existing privacy regimes and explains why these approaches inadequately address current Big Data challenges. This Article then proposes a new approach to mitigating predictive privacy harms—that of a right to procedural data due process. Although current privacy regimes offer limited nominal due process-like mechanisms, a more rigorous framework is needed to address their shortcomings. By examining due process’s role in the Anglo-American legal system and building on previous scholarship about due process for public administrative computer systems, this Article argues that individuals affected by Big Data should have similar rights to those in the legal system with respect to how their personal data is used in such adjudications. Using these principles, this Article analogizes a system of regulation that would provide such rights against private Big Data actors.

Larkin, Paul J., 'Revenge Porn,' State Law, and Free Speech (January 14, 2014).  Abstract:

For most of our history, only celebrities — presidents, movie stars, professional athletes, and the like — were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone. Today, we all face the risk of being made into a celebrity due to the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet. But a particularly troubling aspect of this phenomenon goes by the name of "revenge porn" — that is, the Internet posting of photographs of naked former wives and girlfriends, sometimes in intimate positions or activities. Revenge porn is an example of malicious conduct that injures the welfare of someone who mistakenly trusted an intimate partner. Tort law traditionally has allowed parties to recover damages for such violations of privacy, and criminal law also can prohibit such conduct, but there are several First Amendment defenses that the responsible parties can assert to fend off liability. This article argues that allowing a victim of revenge porn to recover damages for publication that breaches an implicit promise of confidentiality is faithful to tort and criminal law principles and will not punish or chill the legitimate expression of free speech.

Jonathan Olivito, Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy, 74 Ohio St. L.J. 669 (2013). 

The entirety of Volume 74, Issue 6 in the Ohio State Law Journal; Symposium: The Second Wave of Global Privacy Protection (Titles Below)

Peter Swire, The Second Wave of Global Privacy Protection: Symposium Introduction, 74 Ohio St. L.J. 841 (2013). 

Ann Bartow, Privacy Laws and Privacy Levers: Online Surveillance Versus Economic Development in the People’s Republic of China, 74 Ohio St. L.J. 853 (2013). 

Andrew Clearwater & J. Trevor Hughes, In the Beginning . . . An Early History of the Privacy Profession, 74 Ohio St. L.J. 897 (2013). 

Claudia Diaz, Omer Tene & Seda Gürses, Hero or Villain: The Data Controller in Privacy Law and Technologies, 74 Ohio St. L.J. 923 (2013). 

A. Michael Froomkin, “PETs Must Be on a Leash”: How U.S. Law (and Industry Practice) Often Undermines and Even Forbids Valuable Privacy Enhancing Technology, 74 Ohio St. L.J. 965 (2013). 

Woodrow Hartzog, Social Data, 74 Ohio St. L.J. 995 (2013). 

Dennis D. Hirsch, In Search of the Holy Grail: Achieving Global Privacy Rules Through Sector-Based Codes of Conduct, 74 Ohio St. L.J. 1029 (2013). 

Gus Hosein & Caroline Wilson Palow, Modern Safeguards for Modern Surveillance: An Analysis of Innovations in Communications Surveillance Techniques, 74 Ohio St. L.J. 1071 (2013). 

Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1105 (2013). 

Bartosz M. Marcinkowski, Privacy Paradox(es): In Search of a Transatlantic Data Protection Standard, 74 Ohio St. L.J. 1167 (2013). 

Thomas Margoni & Mark Perry, Deep Pockets, Packets, and Harbors, 74 Ohio St. L.J. 1195 (2013). 

Omer Tene, Privacy Law’s Midlife Crisis: A Critical Assessment of the Second Wave of Global Privacy Laws, 74 Ohio St. L.J. 1217 (2013). 

Yofi Tirosh & Michael Birnhack, Naked in Front of the Machine: Does Airport Scanning Violate Privacy? 74 Ohio St. L.J. 1263 (2013). 

Yang Wang, Pedro Giovanni Leon, Xiaoxuan Chen, Saranga Komanduri, Gregory Norcie, Kevin Scott, Alessandro Acquisti, Lorrie Faith Cranor & Norman Sadeh, From Facebook Regrets to Facebook Privacy Nudges, 74 Ohio St. L.J. 1307 (2013). 

Tal Z. Zarsky & Norberto Nuno Gomes de Andrade, Regulating Electronic Identity Intermediaries: The “Soft eID” Conundrum, 74 Ohio St. L.J. 1335 (2013).

The entirety of Volume 14, Issue 1 of the  Journal of High Technology Law (2014) (Titles Below).

After Jones, The Deluge: The Fourth Amendment's Treatment Of Information, Big Data And The Cloud , Lon A. Berk, 14 J. High Tech L. 1 (2014). 

The Legislative Response To Employers' Requests For Password Disclosure, Jordan M. Blanke, 14 J. High Tech L. 42 (2014). 

A Shot In The Dark: An Analysis Of The SEC's Response To The Rise Of Dark Pools Edwin Batista, 14 J. High Tech L. 83 (2014). 

Privacy Protections Left Wanting: Looking At Doctrine And Safeguards On Law Enforcements' Use Of GPS Tracking And Cell Phone Records With A Focus On Massachusetts, Lloyd Chebaclo, 14 J. High Tech L. 120 (2014).

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Wisconsin's "revenge porn" bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks

The Wisconsin legislature recently proposed a "revenge porn" bill (Assembly Bill 462, full text here: https://docs.legis.wisconsin.gov/2013/related/proposals/ab462.pdf). While I applaud the Wisconsin legislature for addressing an issue that has garnered national attention, I interpret the current proposal (unless I am missing something, and I encourage you to prove me wrong), to criminalize a whole host of conduct having nothing to do with revenge porn. (Of course, if the proposed bill ends up becoming law, the text introduced here may vanish in the final Act; that said, I was still quite surprised that such ambiguous and broad language was proposed in the first instance).

Here is the relevant text:

942.09 (3m) (a) Whoever, without the consent of the person represented,
reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a
representation of a nude or partially nude person or of a person engaging in sexually
explicit conduct is guilty of a Class A misdemeanor. The consent of the person
represented to the capture of the representation or to the possession of the
representation by the actor is not a defense to a violation of this subsection. 

…(various non-controversial exceptions) 

(c) This subsection does not apply if the person represented consented to the
reproduction, distribution, exhibition, publication, transmission, or other
dissemination of the representation for commercial purposes.

This language, to me, omits key words in the model state statute Professor Franks proposes and, by doing so, is overbroad. My reasoning (with hypotheticals calling the language into question):

(1) I think the obvious flaw is omission of a scienter requirement (particularly “intentionally”). If I take a nude photo of my girlfriend with her consent, but accidentally email it to my friend instead of a photo of a wet kitten, I violate this statute. 

(2) The more interesting flaw (and one that implicates the 1st Amendment, perhaps), is that it might criminalize merely emailing any non-commercial pornographic picture. So, if I spend my nights surfing porn and emailing the best photos I find to my friends, but I cannot prove that I had the consent of the person represented to send that image, am I committing a crime? And, moreover, how does one know if they can be saved by subsection (c) — i.e. how does one determine if a pornographic photo was consented to for commercial purposes? (Most images lack any identifying origin). Amateur pornography (and nude self-expression/artistic work) may not be commercial in nature; so, if my neighbor is a free spirit and loves to mail me artistic nude photos taken consensually by her friend, am I committing a crime if I photocopy the picture (reproduce it) for my own personal use (without her consent)? 

(3) Also, I saw an amendment to the bill proposing that “fine art” be exempt from the statute. This makes sense because as the language stands, displaying nude paintings of anyone without their consent runs afoul of the existing language. But, even exempting fine art, if I create a pencil sketch of a female nude model (arguably a representation of her without a statutory definition of “representation”) and show it at an art exhibit without her consent, is that a violation? (this example supposes, correctly, that no one would consider my sketches (or paintings) as “fine art”). The hypo is equally applicable to a photo I suppose. 

(4) One last set (these are less about Wisconsin’s statute and more about the enforcement of any such "revenge porn" statute). What if the nude person in the representation is now dead? If my girlfriend dies in a car accident with her secret lover and, to get back at her for the infidelity, I post all of our intimate photos online, is that a crime? (I think I lean towards yes, but how does one prove she did not consent?) Alternatively, if my grandmother leaves me a nude photo of her in her will and I post it to my Facebook page, crime? (My grandmother's consent is impossible to prove; however, can my grandfather's abhorrence at my conduct serve as the predicate for a violation of the Wisconsin statute?).

Do not take my criticism of the Wisconsin proposal as a condemnation of statutes like this. But, criminalizing any conduct requires a statute narrowly drafted to achieve the overarching goal without: (1) criminalizing conduct not contemplated by the legislature (see, e.g., the CFAA); (2) infringing on protected First Amendment rights; and (3) punishing conduct that misses the "revenge" part of "revenge porn."

The last point is worth elaborating on. "Revenge" is defined in a variety of ways,  see, e.g., the Free Dictionary depending on the context. But, the substance of the word "revenge" is not hard to discern when it is used as a weapon against another; for example, "revenge, reprisal, retribution, [and] vengeance suggest a punishment or injury inflicted in return for one received. [R]evenge is the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who are close to oneself: to plot revenge for a friend's betrayal." Id. Legislatures took notice of "revenge porn" after tragic events and horrific stories popped up on the internet about individuals (often female) being tormented by ex-lovers wishing to exact punishment for real or perceived harm. The nationwide legislative focus on a this sociological phenomenon is, to be sure, quite encouraging. 

However, Wisconsin's current proposal reinforces the well-founded fear of many (including organizations like the EFF and ACLU) that statutes intended to cure "revenge porn," without careful drafting, might overreach and infringe on First Amendment rights. My overarching fear is that legislative bodies will get lost in the morality of pornography (or personal conceptions of permissible social interactions), instead of focusing on the "easy win"  a narrow statute intended to prevent revenge porn's abhorrent invasion of privacy might provide. 

Additionally, notwithstanding the considerations above, it cannot be ignored that a digital photograph published to the internet exists long after the subject of the photo is gone. Digital photos can be cached, preserved as screenshots, or archived by third-party sites like the Wayback Machine. Part of the "revenge" inherent in revenge porn is that the person possessing the nude/pornographic picture is well aware of the above considerations and ignores them as part of the intent to exact revenge.

That said, I must admit that I disagree with the California revenge porn statute; I do not understand requiring something more than "intent" (i.e., an intent to harm as the CA statute reads) to criminalize "revenge porn." While the mens rea for revenge porn might persist as a point of contention, my take is that: an intent to harm rquirement is unnecessarily restrictive; but, at the other end of the spectrum, no scienter requirement (as is the case in Wisconsin AB462) is impermissibly overbroad (see supra).

I don't have all the answers, but my suggestion is that the Wisconsin Legislature look to the wording Professor Franks has proposed as a method to revise the current proposal.

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North Carolina appeals court declares social media ban for sex offenders unconstitutional

In State v. Packingham, No. COA12-1287 (N.C. Ct. App 2013), the Court of Appeals of North Carolina vacated a judgement which forbade a convicted sex offended from accessing social networking websites as mandated by state law.

North Carolina's Protect Children from Sexual Predators Act (N.C. Gen. Stat. § 14-202.5) banned all convicted sex offenders from accessing commercial social networking sites.

At trial for violating the statute, the defendant argued that the statute was unconstitutional, but the court denied the motion. The defendant, a previously convicted sex offender, was found "guilty of accessing a commercial social networking Web site."

On appeal, the defendant argued that the statute violated his constitutional rights. The court agreed, finding that the statute does "further a legitimate state interest" but "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."

The statute was not narrowly tailored "because it treats all registered sex offenders the same, regardless of the offense committed, the victim's age, whether a computer was used to facilitate or commit the offense, the likelihood of reoffending, and regardless of whether the person has been classified as a sexually violent predator. It burdens more people than needed to achieve the purported goal of the statute."

As to the scope, the court ruled:

The construction of N.C. Gen. Stat. § 14-202.5(b) lacks clarity, is vague, and certainly fails to give people of ordinary intelligence fair notice of what is prohibited. We assume that persons of ordinary intelligence would likely interpret the statute as prohibiting access to mainstream social networking sites such as Facebook.com and Myspace.com. However, the ban is much more expansive. For example, while Foodnetwork.com contains recipes and restaurant suggestions, it is also a commercial social networking Web site because it derives revenue from advertising, facilitates the social introduction between two or more persons, allows users to create user profiles, and has message boards and photo sharing features.

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Featured Paper: Hacking Speech: Informational Speech And The First Amendment (Update)

The Northwestern University Law Review's newest issue (a special edition recognizing Northwestern Law faculty member Martin Redish) offers an interesting piece by Andrea M. Matwyshyn titled "Hacking Speech: Informational Speech And The First Amendment." Dr. Matwyshyn is an assistant professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School, a faculty affiliate of the Center for Technology, Innovation and Competition at the University of Pennsylvania School of Law, and an affiliate Scholar of the Center for Internet and Society at Stanford Law School. The abstract appears below:

The Supreme Court has never articulated the extent of First Amendment protection for instructional or “informational” speech—factual speech that may be repurposed for crime. As technology advances and traditional modes of speech become intertwined with code speech, crafting a doctrine that expressly addresses the First Amendment limits of protection for informational speech becomes pressing. Using the case study of “vulnerability speech”—speech that identifies a potentially critical flaw in a technological system but may indirectly facilitate criminality—this Article proposes a four-part “repurposed speech scale” for crafting the outer boundaries of First Amendment protection for informational speech.

Author's Update: I recently contacted Dr. Matwyshyn to expand a bit on her recent article for our readers. Here is what she had to say:

My goal with the article was to highlight existing gaps in the Supreme Court's jurisprudence that will present challenges as courts face future cases dealing with instructional/informational speech and technology. I also sought to propose one possible model for these judicial determinations. As vulnerability exploit markets, 3D printer drivers and other controversial categories of code become more prevalent, it is inevitable that a case of the type considered in the article will end up before the Supreme Court. The Court will then need to decide when, if ever, code crosses the line from protected speech into a regulable commodity and when, if ever, a release of code later used as part of a criminal enterprise constitutes a basis for criminal prosecution. I hope to reinvigorate the legal conversation around these topics.

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Featured Paper: Democratic Values in a Digitized World: Regulating Internet Speech in Schools to Further the Educational Mission

From the Marquette Law Review - the article can be found here (by Maureen Sullivan): Democratic Values in a Digitized World: Regulating Internet Speech in Schools to Further the Educational Mission

Here's the abstract:

The Internet is a remarkable tool—so remarkable that using the word “tool” to describe it is painfully inadequate. With a click of a mouse, a few strokes on a keyboard, or a swipe on a screen, the Internet allows instant communication and transaction at any time by anyone in the world. Young people, especially, have embraced the Internet as a means of communicating with peers and interacting with the world around them. In fact, the Internet may be thought of as a social context—similar to school, church, or home—where young people’s identities are influenced and shaped. As a result, what takes place online may have implications in the off-line world. 

One of those offline places implicated by Internet expression is the public school system. Public elementary and high schools are unique institutions. They have long been recognized as playing a dominant role in maintaining our democratic society by inculcating in students certain values such as respect, honesty, citizenship, responsibility, and integrity. And, because public students enjoy less constitutional protections on school grounds and during school hours, public schools have been permitted to discourage expression and behavior that conflicts with those values. But there is a disagreement over whether public schools may discourage Internet expression that conflicts with those values. This Comment seeks to explain why permitting schools to limit certain Internet expression—regardless where or when the Internet expression occurred— promotes the educational mission of public schools.

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