From the abstract:
Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, Uniform Commercial Code filings on personal property, copyright and patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle e-book collections in the cloud are all merely entries in a list, determining who owns what.
Each such list has suffered a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero transaction costs are the fuel of Internet scalability. Property transactions have not yet truly undergone an Internet revolution at least partly because they are constrained by the cost of creating centralized trusted authorities.
This Article reimagines the contours of digital property if that central constraint were removed. There is every reason to believe it can be. Increased interest in cryptocurrencies has driven the development of a series of technologies for creating public, cryptographically secure ledgers of property interests that do not rely on trust in a specific entity to curate the list. Previously, the digital objects that users could buy and sell online were not rivalrous in the same way as offline physical objects, unless some centralized entity such as a social network, digital currency issuer, or game company served the function of trusted list curator. Trustless public ledgers change this dynamic. Counterparties can hand one another digital, rivalrous objects in the same way that they used to hand each other gold bars or dollar bills. No intermediary or curator is needed.
In addition, the advent of this technology provides an opportunity to discuss property interests in information environments. Property online is currently anemic. Consumers control few online resources and own even fewer. This is in no small part due to antiquated notions of property as the law of physical, tangible resources. Given new technology that can create digital, scarce, and rival intangible assets, these basic assumptions should be reexamined and replaced with a theory of property as an information communication and storage system. That is the project of this piece.
Cornell Law Review Online Publishes Response and Reply to Luna and Fairfield article “Digital Innocence”
In September 2014 Washington and Lee law professors Erik Luna and Joshua Fairfield published an article entitled “Digital Innocence” in the Cornell Law Review, Vol. 99, Issue 5. Cornell Law Review Online has now published two responses to the article and a reply from Professors Luna and Fairfield.
Find the full text of the article, responses and reply below:
“Digital Innocence” by Erik Luna and Joshua Fairfield
“Big Data and Due Process”, a response by Brandon Garrett, University of Virginia School of Law
“Collection Anxiety”, a response by Jane Bambauer, University of Arizona College of Law
“The Open Society and Its Digital Enemies: A Reply to Professors Bambauer and Garrett“, a reply by Erik Luna and Joshua Fairfield
From the abstract:
Recent revelations have shown that almost all online activity and increasing amounts of offline activity are tracked using Big Data and data mining technologies. The ensuing debate has largely failed to consider an important consequence of mass surveillance: the obligation to provide access to information that might exonerate a criminal defendant. Although information technology can establish innocence—an ability that will only improve with technological advance—the fruits of mass surveillance have been used almost exclusively to convict. To address the imbalance and inform public dialogue, this Article develops the concept of “digital innocence” as a means of leveraging the tools of Big Data, data mining, ubiquitous consumer tracking, and digital forensics to prevent wrongful convictions and to provide hard proof of actual innocence for those already convicted.
Download the full article here.
Washington and Lee law professor Josh Fairfield was a speaker at this year’s Digital Asset Transfer Authority annual conference in April. During the conference, Prof. Fairfield spoke on a panel addressing consumer protection and privacy along with Garrett Graff, Editor, The Washingtonian; Beriz Szoka, Founder and President, TechFreedom; Jody Westby, CEO Global Cyber Risk LLC; and Christina Tetreault, Staff Attorney at Consumers Union. A video of the presentation is available below:
On Dec. 4, Washington and Lee law professor Josh Fairfield will present during a plenary session at the Minnesota Annual Judicial Conference. The title of his talk is “We the People in a Virtual World.” Below is the abstract for the talk:
What if The Matrix were real? Through virtual world technology, users experience persistent and interactive computerized three dimensional worlds populated by many other people, all while sitting at their computer, or even as they walk or drive around. There is a lot of money at stake in this technology. Millions of citizens spend thousands of hours and billions of dollars in virtual worlds, for digital objects, or to buy digital currency. Virtual worlds, social networks, and augmented reality enable people to live out their economic, social and political lives in new online communities. Because citizens care deeply about their property, personhood, and community, they will bring claims of harm or disputes needing resolution to courts.
In the common law system, state courts see technology cases first. The common law often is technology law. New cases are often cases of first impression because of new technology. Virtual world technology has brought multi-million-member communities together online and supported a multi-billion dollar economy, but it has also afforded new opportunities for fraud, crime, or disputes over property. Claims of theft of virtual property, fraud through Ponzi schemes based on virtual currency, and questions who inherits virtual property or social network accounts either have or will soon come before courts.
This presentation will touch on core common law areas, and show how they are likely to be affected by the rise of virtual worlds, social networks, virtual currency, and wearable computing. The presentation will begin with an introduction to virtual world technology, continue with a description of the present and near-future cases that courts have or will soon engage, and conclude with a further-future look at the future of crypto-currencies. Finally, the developments of the past year make it clear that virtualization technologies will not merely remain in virtual worlds, but increasingly impact everyday life. Virtual currencies let drug dealers sell real drugs. Wearable computing like Google’s Glass take virtual worlds out of the desktop computer and overlay it on top of the real world. This look into the further future will also engage mixed and augmented reality technologies: computer technologies that bring these virtual experiences into the real world.
On Oct. 26, Washington and Lee law professor Josh Fairfield presents his paper on social media privacy at the Conference on Empirical Legal Studies (CELS) at the University of Pennsylvania Law School. Prof. Fairfield coauthored the paper with Christoph Engel of the Max Planck Institute.
Now in its eighth year, CELS features original empirical legal scholarship by leading scholars from a diverse range of fields. The conference is very selective in terms of the presentations and includes commentary from top scholars on each paper.
Fairfield’s paper is titled “Big Brother is Watching You Because Little Brother has Opened the Door: An Experiment on Information Sharing in Social Networks.” The paper studies the problems people have protecting their privacy over social networks. Fairfield and Engel observe that legal policy characterizes privacy as a private problem that each person needs to protect for themselves. But they argue that in reality privacy is a social construct: you do not need it on a desert island.
Consequently, the authors study data pollution as a public bad–a pool to which we all contribute information about each other. In the wake of the Snowden revelations about the Prism program, in which Americans’ social network data was provided to intelligence agencies on a massive scale, the authors believe it is more important than ever to understand how privacy is everyone’s problem.
For more information about CELS, visit the conference website.
Washington and Lee law professor Josh Fairfield has published an article in the Northwestern Journal of Technology and Intellectual Property titled “Do-Not-Track as Default.” The article covers this developing online legal and technological standard that permits consumers to express their desire not to be tracked by online advertisers. From the abstract:
Do-Not-Track has the ability to change the relationship between consumers and advertisers in the information market. Everything will depend on implementation. The most effective way to allow users to achieve their privacy preferences is to implement Do-Not-Track as a default feature.
The World Wide Web Consortium’s (W3C) standard setting body for Do-Not-Track has, however, endorsed a corrosive standard in its Tracking Preferences Expression (TPE) draft. This standard requires consumers to set their privacy preference by hand. This “bespoke” standard follows in a long line of privacy preference controls that have been neutered by increased transaction costs.
This article argues that privacy controls must be firmly in consumers’ hands, and must be automated and integrated to be effective. If corporations can deprive consumers of privacy through automated End User License Agreements or Terms of Service, while consumers are constrained to set their privacy preferences by hand, consumers cannot win. Worse, the TPE bespoke standard is anticompetitive. Already, browsers like Microsoft’s Internet Explorer 10 (IE10) will launch with default Do-Not-Track enabled. But the TPE bespoke standard offers advertisers a free pass to ignore the Do-Not-Track flags that will be set by IE10 and prohibits other browsers from offering automatic, integrated, and therefore useable privacy features.
The article is available for download from the Journal’s website.