As often happens during the heat of the New England summer, we on the Cyberlaw Clinic team find ourselves thinking about the past academic year and looking ahead to the next. It is a great time to pause and reflect on the work of our students and the overall state of our program, which has now served the HLS student body and the broader technology law and policy community for more than sixteen years. This post serves as something of an “academic year in review” for the 2015-16 school year and a preview of things to come.
The Clinic settled into an energized and productive routine over the last two years due in large part to the fact that our stellar students have been led by a stellar teaching team — Clinical Professors Chris Bavitz and Susan Crawford, Clinical Instructor and Lecturer on Law Dalia Ritvo, Clinical Instructor Vivek Krishnamurthy, Clinical Fellow Andy Sellars, and Project Coordinator Kira Hessekiel. Given all our successes of the past couple of years, it is with mixed emotions that we bid farewell to two integral members of that team — Dalia Ritvo and Andy Sellars — each of whom is moving on from the Clinic this summer. Dalia, our former Assistant Director, is heading home to Colorado, where she will be closer to family. And, Andy is taking the helm of a brand new tech clinical program just across the Charles River at Boston University, where he and his students will serve BU and MIT students. Both Andy and Dalia will maintain ties to the Berkman Klein Center in 2016-17 as Affiliates, and we know that they will continue to be friends, colleagues, and collaborators in years to come.
In the midst of these changes, we are pleased to report that Vivek Krishnamurthy has been promoted to Assistant Director of the Cyberlaw Clinic and will play a vital role in managing the program going forward. Vivek has also been appointed Lecturer on Law for the coming academic year and will co-teach the Cyberlaw Clinic Seminar with Chris Bavitz. Vivek joined the Clinic in fall 2014, and his diligent work in recent years has significantly expanded the Clinic’s focus on issues relating to human rights, digital civil liberties, and corporate social responsibility. We could not be more excited to have Vivek on board in these expanded roles.
And, as if that weren’t enough excitement on the staffing front… we’re hiring! Multiple positions, in in fact — a Clinical Instructor and one or two Clinical Fellows. Please help spread the word far and wide as we look to expand our team.
Members of the Clinic teaching team taught a number of courses at Harvard Law School during the past academic year, including:
- “City Use of Technology,” a fall course taught by Clinical Professor and Berkman Klein Center Faculty Director Susan Crawford;
- “Counseling and Legal Strategy in the Digital Age,” a fall seminar taught by Clinical Professor and Berkman Klein Center Faculty Director, Christopher Bavitz and Clinical Instructor and Lecturer on Law Dalia Topelson Ritvo;
- “Cyberlaw Clinic Seminar,” a seminar taught during the fall and spring semesters by Chris and Dalia;
- “Technology, Justice, and the Delivery of Legal Services,” a 1L reading group taught by Chris, along with Harvard Law School Clinical Professor Esme Caramello;
- “Problem Solving Workshop,” a 1L law student seminar taught by Susan during the HLS winter term; and
- “Music and Digital Media,” a spring seminar which Chris taught this past spring for the sixth consecutive year.
Cyberlaw Clinic: Student Engagement
The Cyberlaw Clinic enrolled 30 students in Fall 2015, 4 continuing students in Winter 2016, and 31 new and continuing students in Spring 2016, for a total of 65 student slots during the 2015-16 academic year. Those students enrolled for a total of 167 credits over the course of the year, and the Clinic’s supervising attorneys managed more than 10,000 hours of student work. We have a summer intern with us this summer — Griffin Davis from University of Pennsylvania Law School — who is keeping our projects afloat.
Cyberlaw Clinic: Substantive Practice and Client Base
During the 2015-16 academic year, the Clinic continued to focus its work on a number of key subject areas, including: litigation; intellectual property; privacy; online safety; free speech and media law; digital civil liberties; government innovation; communications infrastructure; regulatory compliance; and technology and access to justice. The Clinic’s work in these areas ran the gamut from preparing legal research memoranda for clients to drafting transactional and public-facing policy documents to representing them in court proceedings as litigants or amici curiae.
The Clinic served a growing number of clients and a wider range of clients than ever before, including individuals, small start-ups, non-profit organizations, academics, and government entities. Simultaneously, the Clinic intensified its strategy to integrate student representation and legal support with research projects at the Clinic’s home institution — now known as the Berkman Klein Center for Internet & Society. For example:
- The Clinic submitted an administrative comment on behalf of Clinical Professor Bavitz and Berkman Klein Center Project Coordinator Adam Holland — each commenting based on experience with the Lumen database project — in connection with the Copyright Office’s evaluation of Section 512 of the United States Copyright Act.
- The Clinic also supported the work of the Center’s Youth & Media project to educate teachers about fair use. Together, we produced a podcast in collaboration with Radio Berkman; a guide for teachers (including a number of education-specific resources); and an infographic to explain fair use doctrine in a visual way. The resources are helping to grow Berkman Klein’s Digital Literacy Resource Platform, an evolving collection of tools about online safety, privacy, creative expression, and information quality that can help users navigate connected learning environments and the digital world.
Clinic students provided representation to a wide variety of non-Berkman-affiliated clients throughout 2015-16 as well, including mission-driven startups, governmental organizations, advocacy groups, and arts and cultural institutions.
Cyberlaw Clinic: Representative Cases and Matters
A few notable examples of cases and projects handled by Clinic students during the past academic year include the following:
(a) Litigation. The Clinic, both directly and working in tandem with law firms located around the United States, has represented individuals and organizations in connection with pre-litigation disputes and active litigation across subject areas ranging from intellectual property to media law. Of particular note in 2015-16, the Clinic handled several matters involving freedom of information laws, including an administrative appeal of a federal agency’s denial of a researcher’s request for documents made under the Freedom of Information Act in which the Clinic and its client prevailed. The Clinic also represented a website operator in an ongoing domain name dispute with a government entity.
(b) Intellectual Property. Copyright and other intellectual property issues remained near the top of the Clinic’s docket during the past year — a reflection of both client demand and student interest. Of particular note:
- Spearheaded by Clinical Fellow Andy Sellars, the Clinic succeeded in obtaining an exemption for a coalition of medical device researchers from the technological protection measures present in implantable medical devices, including pacemakers, defibrillators, and glucose monitors.Many device manufacturers use encryption methods as a copyright protection measure that researchers must break in order to evaluate the security and effectiveness of such devices, or even the data these devices contain about their own medical conditions, which is why the coalition sought an exemption to the Digital Millennium Copyright Act during the Library of Congress’s triennial rulemaking process to grant these exemptions.
- The Clinic filed amicus briefs in the U.S. District Court for the District of Columbia on behalf of a coalition of law scholars in a pair of cases examining the copyright status of model codes and standards — such as building and electrical codes — that were originally developed by private organizations but later incorporated into the law. The briefs argue that such codes are not proper subjects of copyright protection since the Supreme Court has long recognized that the law belongs in the public domain. Furthermore, such codes are subject to copyright’s merger doctrine once they are incorporated into the law, for “there is only one way to express what the law of a jurisdiction is, and that is the text of the law itself.”
- The Clinic advised clients on copyright and trademark matters, including extensive counseling of a documentary film team about copyright questions, licensing, and fair use and intellectual property matters and advising of clients about the viability and registrability of proposed trademarks.
(c) Privacy and Data Security. As public concern continues to mount over the privacy and security of the information people entrust to the digital devices and services they use everyday, privacy has grown into the Clinic’s single-busiest practice area. A significant majority of the projects the Clinic takes on now involve a privacy component, but some of the highlights of our work last year include:
- Clinic students contributed to the Electronic Privacy Information Center’s November 12, 2015 comments, submitted to the Federal Aviation Administration in connection with an inquiry regarding registration of Unmanned Aircraft Systems. In the comments, EPIC expressed support for registration but raised concerns about public availability of personal information of registrants. The FAA’s Interim Final Rule on this subject, issued on December 16, 2015, cited EPIC’s comments extensively.
- Dalia Ritvo and Vivek Krishnamurthy of the Clinic teamed up with Sarah Altschuller in the Corporate Social Responsibility practice of the law firm Foley Hoag LLP to prepare a guide entitled “Managing Users’ Rights Responsibly – A Guide for Early-Stage Companies.” A number of Cyberlaw Clinic students contributed to the project, which seeks to provide an overview of challenges that companies face when dealing with third-party requests to access or suppress information relating to customers.
(d) Online Safety. The Cyberlaw Clinic continued to promote online safety — especially youth online safety — through a wide range of collaborations concerning privacy and related issues. Of particular note, Cyberlaw Clinic Assistant Director, Dalia Topelson Ritvo, with the help of Clinic students, Crystal Nwaneri and Makala Kaupalolo, published an updated guide to help K-12 schools navigate the federal laws that apply when introducing networked technologies both in and out of the classroom. The goal of the guide is to help schools, administrators and teachers make more empowered decisions on how to use networked technologies in a way that complies with federal laws protecting student privacy.
(e) Free Speech and Media Law. The Cyberlaw Clinic has been very active in addressing the broad spectrum of legal issues faced by those who express themselves online or host the expression of others on services that they operate. The Clinic has provided advice and counsel in matters involving First Amendment issues, defamation claims, and anonymous speech online. Of particular note this year:
- In April 2016, the Clinic filed an amicus brief in the United States Court of Appeals for the First Circuit on behalf of the New England First Amendment Coalition (NEFAC) and the Keene Sentinel in Rideout v. Gardner, No. 15-2021. The case concerns a New Hampshire law that aims to ban “ballot selfies” — i.e., photos of completed ballots that are posted on social media. The brief argues that the law is unconstitutional under the First Amendment, as it prohibits a variety of speech important to monitoring the government, educating voters and engaging in political debate. The brief also raises specific examples of times when photographs of ballots helped the public clear up misunderstandings about government conduct, demonstrated how to ensure that one’s vote would be counted, and conveyed messages about civic participation and advocacy for a candidate that could not expressed with words alone.
- The Clinic supported Public Citizen and the Electronic Frontier Foundation in filing an amicus brief in the case, Small Justice LLC v. Xcentric Ventures LLC, pending before the United States Court of Appeals for the First Circuit. The case raises important questions about the interplay between copyright law and laws protecting free expression, including the immunity granted to platforms that host content uploaded by users pursuant to Section 230(c) of the Communications Decency Act.
(f) Digital Civil Liberties. From local police forces seizing and searching an individual criminal suspect’s electronic devices to the National Security Agency’s mass surveillance programs that were disclosed by Edward Snowden in his 2013 revelations, the question of how our civil liberties should be protected against government incursions big and small in this “golden age of surveillance” continues to be headline news. During the past year, the Clinic has continued to work with leading domestic and international civil liberties organizations to study the legality of a range of surveillance and investigative techniques used by governments here in the U.S. and around the world. Our work has ranged from evaluating how various actors can shed more light on the scope and scale of government information requests, to advising our clients on possible avenues for reform through legislation and litigation. Of particular note:
- The Cyberlaw Clinic and attorney Mahesha Subbaraman of Subbaraman PLLC submitted an amicus brief to the United States Court of Appeals for the Ninth Circuit on behalf of civil liberties advocacy organization, Restore the Fourth, in the case, Rodriguez v. Swartz. The case has potentially far-reaching implications regarding the scope and continuing viability of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) — in which the United States Supreme Court addressed the applicability of the Fourth Amendment to a search of a Mexican citizen’s home in Mexico — and more broadly about the extraterritorial reach of the Fourth Amendment’s protections.
- In the fall of 2015, the Clinic prepared a major research memorandum for Amnesty International evaluating the options available to the U.S. government to regulate encryption technologies in response to the so-called “going dark” problem. This work, which is featured in the Spring 2016 issue of the Harvard Law Bulletin, anticipated many of the arguments that were made in the court proceedings that attempted to compel Apple to decrypt the San Bernardino shooter’s iPhone.
- In November 2015, the Cyberlaw Clinic filed an amicus brief in the Supreme Judicial Court of Massachusetts on behalf of the American Civil Liberties Union of Massachusetts in Commonwealth v. Estabrook, SJC–11917. The case concerns when it is permissible for the police to seize a cell phone without first obtaining a warrant, particularly in light of the “remote wipe” features that are built into most modern smartphones. The Clinic’s brief for the ACLU argues that warrantless seizures of cell phones are only justified when there is evidence to suggest that a remote wipe is imminent, and that the police must obtain a warrant promptly thereafter to continue holding the phone until its contents are searched.
- The Clinic has continued to collaborate with the Global Network Initiative (GNI), a multi-stakeholder group of companies, civil society organizations (including human rights and press freedom groups), investors, and academics that have adopted a collaborative approach to protecting and advancing freedom of expression in the information and communications technology sector. Dalia Topelson Ritvo continued to serve as a full member of the GNI’s Board of Directors, while Vivek Krishnamurthy was appointed to the GNI’s Policy Committee representing the academic constituency.
(g) Government Innovation. During the 2015-2016 academic year, Clinic students worked on a number of government technology projects in partnership with the mayor’s offices of the City of Boston and the City of Cincinnati, including creating a one-stop online shop for senior/low-income programs, work on city ordinances that affect access to poles for fiber optic lines, creating “data governance” relationships between the mayor’s office and city agencies, and work on privacy issues arising from government releases of open data privacy issues.
(h) Technology and Access to Justice. The Cyberlaw Clinic continued to do work to promote the use of technology to facilitate the delivery of legal services and, thus, access to justice. Among other things, in fall 2015, the Clinic collaborated with another HLS clinical program to develop a protoype of a tool that helped applicants for certain state benefits evaluate eligibility and calculate their likely benefits. The prototype was built using the A2J Author platform.
Cyberlaw Clinic: Events and Outreach
Clinic staff organized and participated in a variety of events and outreach to the HLS community and beyond during the past year, including the following:
- On May 31, 2016 Dalia Topelson Ritvo and Kira Hessekiel led a Berkman Luncheon Series discussion on corporate structure and internal governance models for open-source software projects, based on research conducted for a guide aimed at the open-source community.
- Susan Crawford gave a talk as part of the Berkman Center Luncheon Series entitled “Why the Right Digital Decision Will Make America Strong” in April 2016. She spoke about the current state of internet infrastructure in the United States and the critical challenge faced by the United States in being competitive economically and creating a 21st-century workforce if the disparities in access are not rectified.
- On April 9, 2016, Chris Bavitz moderated a Harvard Law School Alumni Weekend event regarding technology and the law. Susan Crawford spoke that same weekend about how the post-fiber optics world will change us.
- On March 24, 2016, Chris Bavitz joined David Herlihy, Jessica Silbey, and Alvin Carter for an event entitled “The Music Industry in the Digital Age: Music Making, Music Distribution and Music Copyright in the 21st Century,” which was presented by the New England Chapter of the Copyright Society of the United States.
- Vivek Krishnamurthy traveled to San Francisco in March for RightsCon 2016 and spoke on panels on how companies in the ICT sector should remedy the human rights harms they sometimes create and on the challenges facing early-stage tech companies in respecting the human rights of their users.
- On March 24, 2016, Chris Bavitz moderated a panel discussion regarding the role of states in protecting consumer privacy as part of a Data Privacy Forum hosted by the Massachusetts Attorney General’s Office, in partnership with the MIT Computer Science and Artificial Intelligence Lab (CSAIL) and Internet Policy Research Initiative, the Berkman Center for Internet & Society at Harvard University, and other stakeholders.
- Vivek Krishnamurthy spoke at a symposium on “Big Data and Policing” organized by the Harvard Law and Policy Review in February alongside Elizabeth Joh from UC Davis School of Law and Thomas Abt from the Kennedy School.
- On December 4, 2015, the Clinic helped present an event entitled, “Privacy & Europe: Debating the ‘Right to be Forgotten,’ Trans-Atlantic Data Flows, and the World’s Toughest New Privacy Laws” with Google’s Global Privacy Counsel, Peter Fleischer.
- In October and November 2015, the Clinic co-presented — in conjunction with Greenberg Traurig and the Harvard Law Entrepreneurship Project — a two-part series entitled “From the Ground Up,” which examined fundamental issues for startups involving corporate law, intellectual property, and immigration issues.
- On October 20, 2015, the Clinic co-presented the HLS Law, Science, and Technology Program of Study Mixer, bringing together students from around Harvard Law School with an interest in law and technology.
- On October 6, 2015, Chris Bavitz moderated a discussion presented by the Berkman Center for Internet & Society, featuring pioneering figures in the field of podcasting and Internet audio. The event — entitled “State of the Podcast” — addressed how podcasting emerged and what trends could be determining its future. (also featured in “Conferences and Special Events”)
- Susan Crawford spoke at the Queens University of Charlotte in October 2015 on the subject of her book, The Responsive City, examining the impact of new information technologies on civic life, and the social and economic impact of fiber networks.
- Susan Crawford took part in a conversation with Maine Senator Angus S. King, Jr. and R. David Edelman, Special Assistant to the President for Economic and Technology Policy, during Digital New England: A Summit for Regional Broadband Leaders in September 2015.
- On September 24, 2015, the Clinic worked with the Berkman Center for Internet & Society and the Harvard Journal of Law & Technology to present a talk entitled “Functionality and Expression in Computer Programs: What the Court got Wrong in Oracle v. Google.” The event featured Berkeley Law professor Pam Samuelson.
- Vivek Krishnamurthy organized an international symposium in June 2015 bringing together representatives of government, business, academia, and civil society to discuss how and when data stored “in the cloud” with multinational companies should be disclosed to governments for law enforcement purposes.
Members of the Clinic’s teaching team continued to engage with the broader public through writing and interactions with media. Notable examples include:
- Susan Crawford writes a regular column for Medium.com’s Backchannel, a blog dedicated to the tech world. Some of the highlights from the past year include “Big Cable Owns Internet Access. Here’s How to Change That,” “Crossing the Digital Divide on Chicago’s Toughest Streets,” and “I Have Seen the Future – and It Has a Swedish Accent.”
- Vivek Krishnamurthy was interviewed by NPR’s All Things Considered in July on the implications for the tech sector of the relaxation of U.S. economic sanctions against Iran.
- Susan Crawford, David Talbot, and Waide Warner co-authored a Berkman Center case study, “WiredWest: a Cooperative of Municipalities Forms to Build a Fiber Optic Network,” detailing the efforts of 31 rural Western Massachusetts towns to band together in order to provide high-speed internet infrastructure to all homes in their communities.
- Vivek Krishnamurthy was interviewed by OZY on why a law degree can help those interested in a career in tech.
- Vivek Krishnamurthy was interviewed by CNBC.com in March on whether computer code counts as free speech in connection with Apple’s efforts to fight the U.S. government’s attempt to obtain a court order forcing it to decrypt the San Bernardino shooter’s iPhone.
- Christopher Bavitz spoke to Hasit Shah, a Berkman Center affiliate and journalist, about Prince and his interactions with the world of music copyright for a piece for NPR’s The Record (which covers music news).
- Vivek Krishnamurthy commented on the role of general counsels in sharing-economy companies in a profile of Airbnb lawyer Belinda Johnson for OZY.
- Vivek Krishanmurthy spoke to Vice’s “Motherboard” about the TPP’s intellectual property provisions and their potentially negative impact on hacker and security researchers. According to him, these agreements may endanger the security of many devices likely to make up the “internet of things” in the near future.
- Andy Sellars spoke to Time’s Victor Luckerson about presidential candidate Donald Trump’s claims that he would shut down parts of the internet to staunch the activities of terrorist groups online, pointing out that the internet’s decentralized nature is such that no one country can control what is online.
- Vivek Krishnamurthy published a Berkman Center research paper in February entitled “Cloudy with a Conflict of Laws: How Cloud Computing Has Disrupted the Mutual Legal Assistance Treaty System and Why it Matters.” The paper explains how the rise of cloud computing increasingly creates situations where evidence of a crime committed in one country is stored digitally on servers located in another country, thus necessitating the need for costly and time-consuming international co-operation to obtain such evidence. It then suggests some outlines of a possible solution that allays the risks that this problem poses to the future of a free and open global Internet.
- Dalia Topelson Ritvo spoke to the Washington Post about the use of emojis as a basis for criminal prosecution of threatening violence, following several instances of young people facing charges for using emoji images of guns, bombs, and knives.
- Andy Sellars spoke to The Verge about an iPhone case designed to allow for surreptitious recording of conversations and its compatibility with state and federal tape-recording laws.
- Chris Bavitz spoke to the Harvard Crimson about Harvard Law School’s desire to increase the number of students with STEM backgrounds, as well as the Cyberlaw Clinic’s growth in popularity among current students.
- Slate Magazine commended Susan Crawford in a story highlighting the women who fought for and won net neutrality, particularly for her leadership in the public debate.
- Susan Crawford joined NPR’s John Hockenberry on The Takeaway in October 2015 to discuss the release of Freedom House’s annual Internet Freedom Report and international fight to determine the nature of the Internet.
In addition to staffing changes, several exciting developments are underway at the Cyberlaw Clinic for the 2016-2017 academic year. With the announcement of a generous gift by Harvard Law School alumnus Michael Klein (L.L.M. ‘67), the newly-christened Berkman Klein Center for Internet & Society will have — in the words of Berkman faculty chair Jonathan Zittrain, a “rare and precious liberty to plan and build according to imagination and conscience.” Per the Center’s Executive Director, Urs Gasser, the Center will “build new and enhanced interfaces between the worlds of computer science, engineering, law, governance, and policy through powerful research initiatives, educational programs, and outreach efforts, bringing together the best know-how from both academia and practice, and engaging the next generation of technology and policy leaders and makers.”
In the short term, for us in the Clinic, this means a new logo (up top) and a new URL for our website (http://clinic.cyber.harvard.edu, though links to the old site should redirect to the appropriate place). Big-picture, we expect that spirit of interdisciplinarity and thoughtful, forward-thinking engagement with issues at the heart of the Center’s mission will inform the Clinic’s practice, along with the work of our colleagues throughout the Berkman Klein Center.
On a more practical note, of interest to incoming students who will enroll in the program, Cyberlaw Clinic students who enroll in the program starting this fall will have the opportunity to get more credits for the work they do in the Clinic. Harvard Law School has adjusted the clinical credit scales to reflect the growing importance of practical experience in legal education and the depth and breadth of the student experience in HLS clinics, which means students may enroll for 3, 4, or 5 credits a semester, with each credit correlating to approximately 4 hours of work per week.
As for the substance of our work, we will continue to keep our collective ears to the ground to remain on top of the latest developments. Although we never quite know where our students and clients will take us, a cursory reading of the tea leaves tells us the following:
- We expect to play a role in ongoing debates around civil liberties and national security that have been brewing for the past decade-and-a-half and came to something of a head in the wake of the tragic events in San Bernadino last December and the government’s efforts to access a mobile device belonging to one of the shooters.
- We anticipate the United States Copyright Office and US legislature will continue to pay increased attention to the Copyright Act and consider efforts to reform its more outdated provisions to better address the realities of digital creation and online distribution of content. We know many of our clients in the creative and tech communities are monitoring such efforts carefully.
- We also know many in our community are thinking hard about issues relating to so-called “harmful” speech online — seeking means to combat misogyny, harassment, bullying, and other unsavory conduct online. We expect to be part of conversations about how to address such speech while remaining respectful of legal regimes that protect free expression.
- We look forward to engaging in a substantive way with issues of racial and social justice and the role technology can play in promoting equality (or perpetuating inequality). This is particularly true in the wake of an academic year in which the HLS student body — including many HLS clinical students — focused significant attention on these issues.
We thank our students for their diligent efforts and our clients and collaborators for entrusting us to advocate in their interests over the past year. We look forward to a productive and invigorating 2016-17 academic year!