One track of the Berkman Klein Center’s work on artificial intelligence ethics and governance concerns the use of algorithms, machine learning, and related technologies in ways that impact social and criminal justice. Among other things, this research examines technologies employed by courts in their disposition of criminal cases. Increasingly, judicial determinations are informed by software that helps judges perform “risk assessments” of defendants or otherwise process and weigh factors relevant to decisions about sentencing, parole, and the like. The Center (along with collaborators at the MIT Media Lab) is undertaking a number of efforts to evaluate ways in which these kinds of technologies might mitigate or exacerbate bias. The initiative has both technical and legal components, and a significant amount of our work to date has involved technologists and lawyers working together to correlate technical concepts with legal standards (and vice-versa). In the context of these efforts, the Massachusetts Supreme Judicial Court’s recent ruling in Brangan v. Commonwealth — which has nothing to do with algorithms but concerns, broadly, the process of making bail determinations in Massachusetts — is of significant interest.
With September just around the corner, we here in the Cyberlaw Clinic are eager to get the fall semester underway. And, we are especially excited to announce that the start of the new term comes with a new addition to our practice and teaching team in the form of the one and only Kendra Albert! Kendra is a familiar face around Harvard Law School and the Berkman Klein Center, having worked at Berkman before attending law school at HLS. Kendra was a student in the Cyberlaw Clinic during the spring term of their third year, back in 2016. Kendra spent a year in private practice at Zeitgeist Law in San Francisco from 2016-17 before rejoining us as a Clinical Instructional Fellow this week. We are delighted to have Kendra on board and anticipate that they will contribute to a wide variety of our projects involving privacy, copyright, and related issues.
This past Wednesday — May 24th, 2017 — marked Class Day at Harvard Law School, which takes place each year one day before the University-wide commencement ceremonies. It’s one of our favorite days of the year here at the Cyberlaw Clinic, because it gives us the chance to host an annual get-together for graduating Clinic alums and their families and friends.
The HLS Clinical and Pro Bono programs blog currently features a post by spring 2017 Cyberlaw Clinic student (and graduating Harvard Law School 3L) Alicia Solow-Niederman. The piece highlights Alicia’s work this semester with Clinic Assistant Director Vivek Krishnamurthy and our friend and Clinic advisor Nani Jansen Reventlow. Alicia was part of a team that helped to tackle some complex questions about online jurisdiction, preparing a working paper along with student Javier Careaga Franco (LL.M ’17) entitled “Here, There, or Everywhere?.” The paper offers a methodology and taxonomy aimed at clarifying principles to govern the geographic scope of orders to remove online content.
On April 6, 2017, Cyberlaw Clinic students attended oral argument in a First Circuit copyright appeal involving a curious set of facts and legal issues. The case pitted Richard Goren, a Massachusetts attorney, against Xcentric Ventures, LLC, the owner of an online consumer review website known as the Ripoff Report. Goren was upset by a review of his services posted on Ripoff Report by Christian DuPont, the defendant in a prior case where Goren had represented the plaintiff. Goren initially sued Dupont in Massachusetts state court, alleging that Dupont’s review was defamatory. Dupont failed to appear, and thus defaulted. After obtaining a default judgment, Goren requested that Xcentric remove the posting. Xcentric refused, citing the Ripoff Report’s strict “no removal policy.”
Join Mason Kortz from the Cyberlaw Clinic along with an all-star roster of speakers on April 1, 2017, at Harvard Law School about technology and law enforcement — “Over-Policed and Under Protected: Technology, Law Enforcement and Minorities.” Sponsored by our friends at the Harvard Human Rights Journal, the panelists will address the extent to which use of technology in law enforcement exacerbates problems faced by minority groups in the United States. A reception will follow. Panelists include Sahar F. Aziz of Texas A&M School of Law and Harlan Yu of Upturn, with moderator Elana Fogel from the Massachusetts Committee for Public Counsel Services.
In areas ranging from the so-called “right to be forgotten” to intellectual property to defamation, there is an ongoing debate over how legitimate national laws and preferences should be applied and enforced online in the content takedown context. At the core of this dispute is whether public international law doctrines of territoriality extend to digital spaces, or whether different presumptions should govern online.
On February 21, 2017, the Cyberlaw Clinic filed an amicus brief on behalf of several trusts and estates law scholars and practitioners in Ajemian v. Yahoo!, Inc., Mass. Supreme Judicial Court No. SJC-11917. The brief supports the plaintiffs-appellants in the case. The Ajemian case arises out of a dispute between Yahoo and the family of John Ajemian, who died unexpectedly in 2006. After Mr. Ajemian’s death, the administrators of his estate contacted Yahoo about gaining access to his email account. Yahoo refused, claiming that the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., prevented it from doing so.
On January 24, 2017, the Cyberlaw Clinic filed an amicus brief (pdf) on behalf of the Reporters Committee for Freedom of the Press in the case, Steinmetz v. Coyle & Caron Inc., First Circuit No. 16-1996. The brief supports defendant-appellee in the case, and the Court granted leave to file the brief this week (over the objections of plaintiff-appellant). RCFP was joined on the brief by The Associated Press, Gannett Co., Inc., the New England First Amendment Coalition, and the New England Newspaper & Press Association, Inc. RCFP has summarized the brief on its website.
Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.