Steve Meil (HLS JD ’18), Vinitra Rangan (HLS JD ’18), and Frederick Ding (HLS JD ’18), with Chris Bavitz from the Cyberlaw Clinic at the Clinic’s Year-End Event
The beginning of June marks the arrival of summer interns — affectionately known as “Berkterns” — at the Berkman Klein Center for Internet & Society and the Cyberlaw Clinic. As we begin to settle into our summer routine, we wanted to look back at the 2017-18 academic year and bid a fond farewell to our graduating Cyberlaw Clinic alumni from the Harvard Law School class of ’18. It has been a remarkable year at the Clinic — a year of remarkable work spearheaded by our remarkable students.
Alexa Singh (HLS JD ’18), with Jess Fjeld from the Cyberlaw Clinic
The Law School held its annual “Class Day” festivities on Wednesday, May 23, the day before Harvard’s formal commencement. The HLS-wide Class Day celebration included remarks from HLS Dean John Manning; winner of the Albert M. Sacks-Paul A. Freund Award for Teaching Excellence, HLS Professor Carol Steiker; winner of the Staff Appreciation Award, Edgar Kley Filho; and U.S. Senator Jeff Flake (among many others). The Clinic held its annual year-end event that day for students and their families on the front steps of the Berkman Klein Center’s offices in the little yellow house at 23 Everett Street. Attendees included students who had worked with the Clinic on a wide variety of matters during their time at the Law School, from amicus briefs, to direct client advising, to transactional work, litigation, and policy advocacy. It is always a pleasure to meet the families of students we have come to know so well during their time at HLS and see them off as they prepare to apply their well-earned skills and knowledge in service of new clients and constituencies.
Of the four students whose work is represented in the Harvard Law Review’s April 2018 “Developments in the Law” issue, three are former students in the Cyberlaw Clinic and all have taken classes with our staff. The issue of the Law Review focuses on challenges posed by the vast amount of personal information that individuals now store digitally and with third party technology companies. The student authors, Audrey Adu-Appiah, Chloe Goodwin, Vinitra Rangan, and Ariel Teshuva, presented on their work to a packed room on Thursday, April 18, at the Law School, followed by a conversation moderated by Chris Bavitz.
The Cyberlaw Clinic is preparing for the last segment in the seventh triennial proceeding for exemptions to the anti-circumvention clause of the DMCA—the oral hearings, which are to be held on April 12th, at 2:00 p.m. ET in Washington, D.C and will be livestreamed online here. At this hearing, there will be two panels of testifying witnesses—one in support of the exemption, the other in opposition—appearing before a panel of Copyright Office representatives. The Clinic is coordinating the efforts of the supporting experts, which includes Cyberlaw Clinic Instructional Fellow Kendra Albert, Jessica Meyerson of the Software Preservation Network, Henry Lowood of the Stanford University Libraries, Lyndsey Jane Moulds of Rhizome at the New Museum, and Jonathan Band of the Library Copyright Alliance. The majority of the time will be spent addressing specific questions posed by the Copyright Office during the hearing.
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The week of February 26th is fair use week / fair dealing week, which “celebrates the important doctrines of fair use in the United States and fair dealing in Canada and other jurisdictions.” The Harvard Library Office for Scholarly Communication is putting on fifth anniversary fair use week event — “Tried and True: Fair Use Tales for the Telling” — at Harvard’s Radcliffe Institute for Advanced Studies. Sign up at the website to hear perspectives from luminaries, including Kenneth Crews, David Hansen, and Rebekah Modrak, among many others. The Clinic’s Chris Bavitz joins Laura Quilter and Dan Booth that morning for a discussion entitled “Litigation and Fair Use, the Last 15 Years.”
We in the Cyberlaw Clinic believe that the statute of limitations on year-in-review blog posts expires at the end of the first quarter of the following year. (If you require evidence for this claim, we’ll kindly point you to Orin Kerr’s “Theory of Law.”) With that in mind — as we dig into our newest batch of projects during the Harvard Law School spring term — it seems like a good time to look back and reflect on the past year. It was — to say the least — an eventful one here in the Cyberlaw Clinic, for students and staff alike.
Chris Bavitz, Kira Hessekiel, and Mason Kortz on the Cyberlaw Clinic team joined this letter to Massachusetts legislators, addressing proposals re: the use of risk assessment tools in the Commonwealth’s criminal justice system. A conference committee of the Massachusetts legislature is now working to reconcile House and Senate criminal justice reform bills, each of which includes provisions about the use of RA tools. The letter — sent on behalf of researchers at the Berkman Klein Center for Internet & Society and the MIT Media Lab — urges deliberation and study rather than a mandate that requires adoption of such tools. Cullen O’Keefe — a spring 2018 Cyberlaw Clinic student — assisted in preparation of the letter.
In the wake of Trump’s election and the resurgence of political art inspired by movements like the Women’s March, the Cyberlaw Clinic was approached by artists seeking clarification of their rights and responsibilities as creators and activists online. In response, a team of Berkman Klein staff, Clinic students, and allied creative folks created this Guide. It’s in plain language, meant to be accessible and helpful for folks across the political spectrum who are using art to engage in civic dialogue, to minimize their risks and maximize their impact.
The United States Supreme Court heard oral arguments last Tuesday, January 9th, in Byrd v. United States, Case No. No. 16-1371. The case concerns the question of whether a person can assert Fourth Amendment protections in connection with a search of a rental car in which that person was not an authorized driver. The case raises important questions about privacy in response to law enforcement, including about standing to assert defenses under the Fourth Amendment and about the interplay between private contracts (such as the contract between one renting a car and the rental car company) and Fourth Amendment rights.
The Clinic was pleased to have had the opportunity to work with Professor Bernard Chao of the University of Denver Sturm College of Law on an amicus brief that Professor Chao filed in the United States Supreme Court this week. The brief, submitted on behalf of eighteen intellectual property law professors, supports petitioners’ request that the Supreme Court review a decision of the United States Court of Appeals for the Federal Circuit. That decision – Mentor Graphics v. Eve-USA, (Fed. Cir. March 16, 2017) – awarded patent damages against petitioners. But, as amici argue in the brief, the Federal Circuit failed to properly apportion those damages when assessing respondent’s lost profits.
On December 13, 2017, the Cyberlaw Clinic filed an amicus brief in the United States Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2. The case – commonly known as the “Microsoft Ireland case”– presents the question of whether a search warrant issued in the United States pursuant to a U.S. statute (the Stored Communications Act, 18 U.S.C. § 2703) can compel Microsoft to produce to the U.S. government the contents of an email account stored on Microsoft servers in Ireland. The Supreme Court is hearing the case this term on appeal from a decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which held that the U.S. could not enforce a warrant seeking digital information stored on overseas servers.