2013 Year in Review

As we make our way through the short 2014 winter term and start thinking ahead to spring, it seems like a good time to take stock of goings-on here at the Cyberlaw Clinic over the past twelve months.

2013 was, by many measures, our busiest year to date. More than fifty students enrolled in the Clinic during the winter and spring terms of the 2012-13 academic year and the fall term of 2013-14. Five interns supported the Clinic’s work during the summer months and participated in the Berkman Center’s summer internship program.

Summer 2013 also saw some significant changes for the Cyberlaw Clinic. Phil Malone, who ran the Clinic from 2004 through June of last year, joined the faculty of Stanford Law School, and Clinic Assistant Director Chris Bavitz became the Clinic’s Managing Director. Clinical Instructor and Lecturer on Law Dalia Topelson and Clinical Instructional Fellow Kit Walsh rounded out the Clinic’s teaching team, and Shannon Walker joined the Clinic in October as its first dedicated Project Coordinator.

Amicus advocacy has always been one of the Clinic’s core areas of practice, and it remained one of the Clinic’s most active practice areas last year. We filed six amicus briefs in 2013 on topics ranging from digital civil liberties to the scope of the Digital Millennium Copyright Act:

• In Commonwealth v. Gelfgatt, the Clinic filed a brief (pdf) in the Massachusetts Supreme Judicial Court on behalf of the American Civil Liberties Union Foundation of Massachusetts, the American Civil Liberties Union Foundation, and the Electronic Frontier Foundation, arguing that the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights prohibit the government from compelling a defendant to decrypt electronic data for use against him in a criminal proceeding.

• In Commonwealth v. Augustine, the Clinic filed a brief (pdf) in the Massachusetts Supreme Judicial Court on behalf of the Electronic Frontier Foundation arguing that the protections of the US and Massachusetts Constitutions prohibit law enforcement from obtaining and reviewing cell phone location data without first obtaining a warrant.

• In US v. Auernheimer, the Clinic filed a brief (pdf) in the Third Circuit on behalf of the Berkman Center’s Digital Media Law Project in support of defendant-appellant Andrew Auernheimer, arguing that the First Amendment prohibited increased punishment for Auernheimer’s disclosure of true, newsworthy information about AT&T’s poor security practices, even if the court found the information was obtained in violation of the Computer Fraud and Abuse Act and punished him for that violation.

• In Tuteur v. Crosely-Corcoran, the Clinic filed a brief (pdf) on behalf of the Electronic Frontier Foundation and the Digital Media Law Project, asking the United States District Court for the District of Massachusetts to join other courts that have addressed the issue and confirm that that copyright owners must consider whether a use is fair before sending a Digital Millennium Copyright Act takedown notice pursuant to Section 512(c) of the Copyright Act.

• In Seaton v. TripAdvisor, the Clinic filed a brief (pdf) on behalf of the Digital Media Law Project, asking the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.  The Sixth Circuit affirmed dismissal of plaintiff’s claims against TripAdvisor.

• In Commonwealth v. Rousseau, the Clinic filed a brief (pdf) in the Massachusetts Supreme Judicial Court on behalf of the Electronic Frontier Foundation, arguing that a passenger in a vehicle tracked by GPS had the legal right to challenge the collection of data about his location. The SJC’s decision in the case mirrored the reasoning advocated in the Clinic’s brief.

The Clinic’s patent practice — spearheaded by Kit Walsh — was particularly active in 2013. Notably:

• The Clinic supported EFF’s challenge to the so-called podcasting patent, as part of EFF’s “Save Podcasting” campaign.

• Also in collaboration with EFF, the Clinic made extensive use of the United States Patent and Trademark Office’s “Third-Party Pre-Issuance Submission” process to file what we call “presubs.” This process was introduced in 2012 to allow the public to help patent examiners understand the state of the art before issuing patents, and the Clinic filed a number of  presubs relating to 3D printing.  Kit Walsh of the Clinic wrote a piece for 3Dprintingindustry.com about the project and the important role that providing patent examiners with comprehensive prior art can play in fostering innovation.

• The Clinic worked with a cryptographer to make proprietary technology available on open licensing terms and improve the safety of Internet users relying on cryptography.

The Clinic’s public outreach and education efforts continued last year as well:

• November 2013 saw the publication of a legal guide about the scope of the Children’s Privacy Protection Act and Family Educational Rights and Privacy Act, “Privacy and Children’s Data,” in collaboration with the Berkman Center for Internet & Society’s Student Privacy Initiative.  Dalia Topelson and Chris Bavitz worked on the guide with spring 2013 Clinic students Ritu Gupta and Irina Oberman.

• The Cyberlaw Clinic and Berkman’s Digital Media Law Project teamed up to publish a white paper, “Newsgathering in Massachusetts,” highlighting several categories of laws relevant to independent journalists and newsgatherers in the Commonwealth. HLS student Jillian Stonecipher (who spent time as both a Clinic student and DMLP intern) co-authored the paper.

• The release of the Newsgathering guide coincided the celebration of Cambridge Community Television’s 25th anniversary and CCTV’s “Filling the News Gap” event. Clinic Managing Director Chris Bavitz and Clinic student Alyssa Martin worked with CCTV during the fall semester, 2013, to present a comprehensive overview of copyright law for CCTV’s community of bloggers and others who create and develop content.

• Both Dalia Topelson and Chris Bavitz contributed to the Berkman Center’s 2013 Internet Monitor Annual Report: “Reflections on the Digital World,” a unique collection of short essays addressing notable events and trends in the digitally networked environment.  Dalia’s piece, “The New Guard,” reflected on the implications of moving data and information to digital platforms while Chris Bavitz teamed up with spring term Clinic student Bryan Han to provide an overview of India’s IT Act and the scope of protection for online intermediaries in India.

Other collaborations and projects during 2013 included work with the Commonwealth of Massachusetts Information Technology Division; the Mayor’s Office of New Urban Mechanics, Boston; New York Public Library; PRX; ShoutAbout; and Zeega.

Clinic staff participated in a number of fantastic events at HLS beyond throughout the year, including:

• sessions with Harvard Law School’s Harvard Innovation Lab Experts in Residence Neil Flanzraich, John Williams, and Michael Fertik;

• a panel at the American Constitution Society‘s Northeast Regional Student Convening about privacy law, data access, and the NSA;

• an event at NYU Law School about fair use, commemorating the launch of the Learning About Multimedia Project‘s MediaBreaker tool;

• a conversation with EFF Legal Director Cindy Cohn;

• Real Colegio Compultense’s summer 2013 International Digital Business Seminar;

• Cambridge Community Television’s Summer Media Institute;

• a panel discussion about copyright law at the 2013 Together Festival;

• a discussion at the 26th annual Media and the Law Seminar in Kansas City concerning the scope of the DMCA safe harbor and balancing copyright owners’ rights and First Amendment interests; and

• a New England Regional Computing Program’s Special Interest event about preservation support for digital humanities.

Looking ahead, the Clinic is excited to be joined by renowned telecommunications law expert Susan Crawford this upcoming spring term.  Susan will be visiting at Harvard Law School during 2014 and will serve as an advisor to the Clinic and oversee student work on a wide range of issues, including communications and open government.  We are thrilled to have Susan on board and know our students will make the most of her expertise and mentorship this year.

In terms of the Cyberlaw Clinic’s practice:

• The Clinic looks forward to playing a role in an innovative collaboration launched by Fordham Law School’s Center on Law and Information Policy (“CLIP”), which has developed and released a curriculum for privacy education geared toward middle-school students and has teamed up with institutions at law schools nationwide to implement the curriculum.

• We expect to have another active year on the amicus front. Three of the Clinic’s six 2013 amicus briefs were filed in cases pending before the Massachusetts Supreme Judicial Court (Gelfgatt, Augustine, and Rousseau). The SJC has taken an active interest over the past year in wrestling with complex issues relating to civil liberties in the digital age, and we look forward to continuing to engage with the SJC in the months ahead.

• Children’s privacy issues — which have played a large and growing role in the Clinic’s practice in recent years — will continue to be front and center, as we help clients and other collaborators grapple with complex issues relating to COPPA, FERPA, and state and international legal and regulatory regimes governing privacy of kids’ data.

The Clinic thanks it students, clients, collaborators, Berkman Center and HLS colleagues, and everyone else who helped to make 2013 such a great year.  We look forward to teaching, learning, and generally remaining active and engaged with a wide variety of tech law issues throughout 2014.