Articles Posted in Internet Law

There are no mandatory data retention laws in the United States of America. See https://www.eff.org/issues/mandatory-data-retention; Cf. Anne Cheung & Rolf H. Weber, Internet Governance and the Responsibility of Internet Service Providers, 26 Wis. Int’l L.J. 403 (2008); Christopher Soghoian, An End to Privacy Theater: Exposing and Discouraging Corporate Disclosure of User Data to the Government, 12 Minn. J.L. Sci. & Tech. 191, 209-214 (noting that some ISPs in Sweden have enacted zero data retention policies in response to customer demands, but none of the major American ISPs or telecommunications carriers have made such enactments). There is a probability that service providers will delete the relevant data from their database servers in the near future. So, if the plaintiff or petitioner fails to take timely action, then their database servers may no longer yield the requested basic subscriber information.

In addition, from an international aspect, organizations that are subject to the General Data Protection Regulation (“GDPR”) should know its requirements wherein includes personal data being “kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed.” It’s important to note that some states such as California and Virginia have promulgated similar statutes on this topic. The California Privacy Rights Act (“CPRA”) and Virginia’s Consumer Data Protection Act (“CDPA”) have the same or similar provisions in this respect.

The courts have recognized that, absent a court-ordered subpoena, many of ISPs, that qualified as “cable operators” for purposes of state or federal laws (e.g., 47 U.S.C. § 522) were effectively prohibited from disclosing identities of putative defendants to plaintiff. Digital Sin, Inc. v. Does 1-176 (S.D. N.Y. 2012) 279 F.R.D. 229. Thus, Internet service providers should comply with the subpoena pursuant to the rules. Plaintiffs can issue subpoenas to request basic subscriber information from the service provider that yields the identifiable information. Plaintiffs should utilize any and all options to resolve the discovery dispute without judicial intervention. However, if the service provider fails or refuses to comply with the subpoena, then the plaintiff must seek a court order to obtain the necessary information (i.e., basic subscriber information) to identify the anonymous defendants. Our law firm regularly conducts investigations to prove a specific account was used to access our client’s electronic devices, email accounts, or online storage devices.

According to Biomedcentral, the four laws of neurotechnology are as follows: (1) right to cognitive liberty; (2) right to mental privacy; (3) right to mental integrity; and (4) right to psychological continuity. We’ve discussed some of the legal and ethical issues related to neurotechnology laws in previous articles. Today, our plan is to discuss neurolaws and evaluate the legal and ethical issues.

What are neuroscientists doing at this time?

Neurotechnology is on the verge of expansion especially since there more interest on the topic by the medical and technology sectors. Neuroscientists have thought about the possibilities of connecting electronic devices such as electrodes to the brain and analyzing the information. Now, it has become a tangible possibility due to the expansion of science and information technology which allow structural measures, neural activity and connectivity, molecular composition, and genomic variation of the brain. These abilities have been made easier by exponential advances in computational ability, artificial intelligence, machine learning, and development of sophisticated databases. Neurotechnology can predict a person’s danger level, probability to recidivate, evaluate intent, evaluate competence to stand trial, reveal biological mitigating factors that could explain criminal behavior, distinguish chronic pain from malingering, regain lost memory, and differentiate between true and false memories.

Neurotechnology device manufacturers should take legal and ethical issues into consideration when implementing microchips into a patient’s body. There are two methods being used at this time. First, is the “non-invasive” method where electrodes are inserted on the head’s surface as electrode caps which pick up electrical fields from the brain. So, the electrodes are not penetrating the patient’s body. Second, is the “invasive” method where the electrodes are placed inside the brain’s tissue which can be used to diagnose neurological diseases such as epilepsy.

Neurotechnology raises important legal issues since the human brain is connected to an external device such as a computer. For instance, one question is whether the external device changes the human’s brain activity, and if so, what could be the potential consequences. Artificial intelligence will inevitably change the legal framework in the near future especially since it will be used in the human body. So, the issues of privacy and data security will always come up.

What are the major concerns?

The European Union has developed an artificial intelligence strategy to simplify research and rules and regulations. It’s focusing on building a trustworthy environment. The European Union’s approach to this new technology is to implement a legal framework to address fundamental rights and safety risks. It plans to implement rules to address liability issues. It also plans to revise the sectoral safety legislation and modify the rules and regulations. The new framework grants developers, deployers, and users a certain amount of clarity if it becomes necessary for them to intervene if legislation does not cover the issues.

Artificial intelligence can be used in critical infrastructures such as manufacturing and transportation. This technology can be used in education and vocational training such as preparing, taking, and scoring exams. Robotic technologies are already being used in medical products that would allow robot-assisted medical procedures. Law enforcement agencies can use this technology but they should not interfere with the general public’s fundamental rights (e.g., free speech, religious beliefs, privacy). The state and federal courts can use it for assistance in evidence comparison and evaluation. Biometric technology can also be used in conjunction with artificial intelligence.

On April 21, 2021, the European Commission has published a proposed set of laws to regulate the usage of artificial intelligence in its jurisdictions. The Artificial Intelligence Act consolidates a risk-based approach on the pyramid of criticality to assess the risks. There are four major risk levels starting from minimal risk, limited risk, high risk, and unacceptable risk. This proposed legislation implements a new enforcement agency called the European Artificial Intelligence Board (“EAIB”) which consists of national supervisors who will have oversight power. The Artificial Intelligence Act will have an extraterritorial effect on all providers, marketers, or distributors whose products or services reach the European Union’s market. This regulation defines artificial intelligence as a collection of software development frameworks that include machine learning, expert and logic systems, and statistical methods.

The experts describe “metaverse” as an alternate digital real-time existence offering a persistent, live, synchronous, and interoperable experience. It is where the real world meets the virtual world. Well, it sounds like science fiction but it’s going to be reality soon. The question is what are the legal issues and what remedies are available now.

Intellectual Property Issues

First, can copyright licenses protect the use of a work? The copyright laws should protect the original works as described in the applicable statutes such as the Copyright Act. In general, it protects original works of authorship, including, literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

Our law firm has received thousands of calls from actual or potential clients who were concerned about false, disparaging, or defamatory comments that were made about them on the internet. These comments were made by known or unknown individuals on websites, blogs, or forums such as Twitter, Facebook, Yelp, Reddit, or Instagram. The callers were obviously disconcerted and wanted to know the available legal remedies.

The federal Communications Decency Act (“CDA”) that is codified under 47 U.S.C. Section 230 has a direct effect on online defamatory comments that are made on social media platforms. This federal statute states that Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.