The Laboratorium
July 2014

This is an archive page. What you are looking at was posted sometime between 2000 and 2014. For more recent material, see the main blog at

Internet Law: Cases and Problems Version 4.0

Version 4.0 of Internet Law: Cases and Problems is now available. This is the 2014 update of my casebook, and it has been a busy year. I produced a special supplemental chapter on the NSA and the Fourth Amendment in December, and it was out of date within a week. The new edition has over twenty new cases and other principal materials and dozens of new questions and problems. Here is a partial list of what’s new:

  • A technical primer on cryptography
  • Coverage of venue in criminal cases, featuring U.S.. v. Auernheimer
  • An excerpt from danah boyd’s It’s Complicated discussing the four affordances of speech in social media
  • United States v. Petrovic on revenge porn
  • Jones v. Dirty World on the (non)liability of websites for user-posted content
  • Heavily revamped Fourth Amendment coverage, now introduced by the Supreme Court’s decision in Riley v. California (cell phone searches) and with a note on U.S. v. Jones (the mosaic theory and GPS tracking)
  • Ehling v. Monmouth-Ocean Hospital on applying the Stored Communications act to Facebook posts
  • Coverage of the pen register statute
  • 29 pages of NSA coverage, featuring discussion of the NSA’s mission, the law and policy of national security wiretapping, the Section 215 telephone metadata program, and Fourth Amendment challenges to national security metadata collection
  • In re Snapchat, a cutting-edge FTC privacy enforcement action (with pictures!)
  • The CJEU Google Spain decision on the so-called “right to be forgotten”
  • A concise set of materials on Bitcoin, with a technical primer and interpretive guidance documents from FinCEN and the IRS
  • A short excerpt from ABC v. Aereo on the public performance right in copyright
  • An all-new chapter on software patents, headlined by the Supreme Court’s decision in Alice Corp. v. CLS Bank, with cases raising issues of obviousness, claim construction, patent assertion entities, standard-essential patents, and injunctions
  • Reworked materials on network neutrality, with added excerpts from Chairman Powell’s “four freedoms” speech, the Madison River consent order, Comcast v. FCC, and Verizon v. FCC, along with a note on interconnection issues such as the Netflix-Comcast dispute

I have also gone over every question in the book, tightening up wording, removing redundancies, and focusing the inquiries on what really matters. As before, the book is available through Semaphore Press as a pay-what-you want DRM-free PDF download at a suggested price of $30. The price has stayed the same, but compared with the first edition you get now 55% more casebook for your dollar. The book is still targeted at law students but written, I hope, to be broadly interesting.

Download it while it’s hot!

Three Letters About the Facebook Study

My colleague Leslie Meltzer Henry and I have sent letters asking three institutions—the Proceedings of the National Academy of Sciences, the federal Office for Human Research Protections, and the Federal Trade Commission—to investigate the Facebook emotional manipulation study. We wrote three letters, rather than one, because responsibility for the study was diffused across PNAS, Cornell, and Facebook, and it is important that each of them be held accountable for its role in the research. The letters overlap, but each has a different focus.

  • Our letter to PNAS deals with the journal’s commitment to publish articles on human subjects research only when participants gave informed consent and an IRB reviewed the substance of the research. We explain why emotional manipulation study met neither of those conditions, and why the only appropriate response by PNAS is to retract the article.
  • Our letter to OHRP deals with the Cornell IRB’s flawed reasoning in treating the emotional manipulation study as research conducted independently by Facebook. We unpack the conflicting statements given to justify the study, and show that none of them stands up to close scrutiny.
  • Our letter to the FTC deals with the heightened concerns that arise when consumers are subject to active manipulation and not just passive surveillance. We explain why conducting psychological experiments on consumers without informed consent or oversight can be a deceptive and unfair trade practice.

Our letters deal with cleaning up the mistakes of the past. But they also look to the future. The Facebook emotional manipulation study offers an opportunity to put corporate human subjects research on a firmer ethical footing, one in which individuals given meaningful informed consent and in which there is meaningful oversight. We invite PNAS, OHRP, and the FTC to take leading roles in establishing appropriate ethical rules for research in an age of big data and constant experiments.

UPDATE, July 17, 2014, 1:30 PM: I am reliably informed that Cornell has “unchecked the box”; its most recent Federalwide Work Agreement now commits to apply the Common Rule only to federally funded research, not to all research undertaken at Cornell. (I made the mistake of relying on the version of its FWA that the Cornell IRB posted on its own website; I regret the error.) This affects the issue of the OHRP’s jurisdiction, but not the soundness of the Cornell IRB’s reasoning, which rested on the activities of Cornell affiliates rather than on the source of funding.

UPDATE, July 24, 2014, 2:00 PM: The letter to the FTC overstates the effects of the Bakshy et al. link-removal study when it describes the study as making some links “effectively unshareable.” Links were removed from News Feeds on a per-user basis, so removed links were still seen by other users.