When the Cyberlaw Clinic was founded at Harvard Law School during the 1999-2000 academic year, the law was evolving to accommodate rapidly-developing technologies that facilitated communication and interaction with content online. While large commercial entities could afford to pay for high-quality legal services in the emerging area of cyberlaw, the same wasn’t true for many individuals, scholars, non-profits, mission-driven start-ups, and advocacy organizations.
Berkman Klein Center founders Jonathan Zittrain and Charlie Nesson created the Cyberlaw Clinic to fill the need for clinical legal services among those grappling with the transformative impacts of the expansion of the internet, to ensure that the public interest was represented in key policy debates that would shape the development of the world wide web, and to offer law students the opportunity to build the substantive knowledge and skills necessary for high-tech practice. Against that backdrop, the Center launched the Clinic in 1999 with a handful of students working alongside Harvard Law School faculty on legal questions relevant to the internet. A formal program began the following year.
We made a number of efforts to commemorate the Clinic’s 20th anniversary during the 2019-2020 academic year, including:
- hosting an event that reflected on the twenty years since Napster’s launch (featuring Clinic friends Dave Herlihy, Jennifer Jenkins, and Nancy Baym);
- presenting a daylong symposium on digital rights and sex work, in conjunction with Hacking Hustling (an event that included Clinical Instructor Kendra Albert’s presentation of work that they are doing on the Fight Online Sex Trafficking Act with the Global Gender Justice Clinic at Cornell Law School); and
- co-sponsoring a live recording of the Harvard Black Law Student Association Podcast, “Hate 2 See It,” co-hosted by fall 2019 Cyberlaw Clinic student James Holloway on the topic, “Is Intellectual Property Racist?,” featuring Anjali Vats.
Harvard Law School (and Carolyn Schmitt at the Berkman Klein Center for Internet & Society) did a great writeup about the history of the program. And, HLS featured the Clinic’s Managing Director, Chris Bavitz, in its “Faculty Voices” video series, talking about the clinic.
Unsurprisingly, the spring semester presented unprecedented challenges for students, teachers, and clients alike. While we were able to switch modes of teaching and practice from in-person to remote and re-evaluate the Clinic’s docket and priorities, the COVID-19 pandemic caused us to cancel plans for a full-blown 20th-anniversary celebration, featuring alums from throughout our decades of operation, and otherwise press pause on events commemorating all that our students have achieved over the past twenty years.
As we on the Clinic team have reflected with admiration on the program’s achievements, we thought we would share some recent highlights. This offers a snapshot of how the Clinic operates these days and allows us to take stock of where we want the Clinic to go over the next twenty years.
2019-20: CYBERLAW CLINIC STUDENTS
For the most part, the Clinic format has remained consistent in recent years. There were a total of 64 students in the Clinic in the calendar year 2019 — 2 in the winter, 29 in the spring, and 30 in the fall, enrolled for credit, along with 3 2019 summer interns. In the academic year 2019-20, we had 60 students and will have 3 interns this summer.
In the spring and fall, students enroll in the Clinic alongside the Cyberlaw Clinic Seminar, which offers an opportunity for students to participate in discussions about the substantive and procedural intricacies within the practice of technology law and exchange ideas about their ongoing projects in case rounds. We made time this spring, in particular, to reflect in the Seminar on the nature of public interest tech practice in 2020 and the ways in which the Clinic’s docket has changed over the years.
2019-20: REPRESENTATIVE CYBERLAW CLINIC PROJECTS
Throughout the Clinic’s existence, and certainly in recent years, we have strived to keep our docket broad-based. A look back at the cases and projects we worked on in 2019 and into 2020 reflects the teaching team’s desire to give students exposure to many substantive areas of practice and many types of practice. A broad and diverse experience helps prepare students for the realities of tech practice and allows us to draw connections between seemingly disparate issue areas. Examples of cases and projects on our docket the past couple of years include the following.
Client Counseling and Advising
- The Clinic worked with Housing Navigator, a newly formed Massachusetts nonprofit, to assess privacy issues related to the public release of income-restricted housing information. Housing Navigator plans to use this information to provide better support for individuals looking for housing.
- The Clinic provided legal support for Jack & Yaya, an exceptional documentary film that follows two childhood friends, Jack and Yaya, as they support each other as out transgender people. The film was produced by Mary Hewey and Jen Bagley, and has been featured as an official selection at the Toronto Film Festival, Philidelphia qFlix Festival, and Seattle Transgender Film Festival, among others.
- The Clinic continued providing legal support for DEFCON’s Voting Village, a group of computer security researchers and hackers who find vulnerabilities in voting equipment to secure American elections. In 2019, as with previous years, clinic students did a pre-publication review on Voting Village’s reporting on vulnerabilities found during their August event, as well as providing other forms of legal support.
- The Clinic filed two amicus briefs (on behalf of lawprof coalitions) supporting Public.Resource.org in cases before the United States District Court for the District of District Columbia regarding copyright in standards incorporated into law.
- The Clinic filed another brief supporting Public.Resource.org, this one in the United States Supreme Court, on behalf of the Caselaw Access Project at Harvard, in a case regarding the copyright status of the Official Code of Georgia Annotated.
- The Clinic worked with Charles Duan at the R Street Institute on a set of comments submitted to the United States Patent and Trademark Office regarding patents and artificial intelligence inventions.
- The Clinic also worked with Charles / R Street on an amicus brief in the Medtronic case, before the United States Supreme Court.
- The Clinic had the distinct honor and privilege of working with our friend Cathy O’Neil on a set of comments to the United States Department of Housing and Urban Development, regarding HUD’s proposed new rules on use of algorithmic tools to make housing determinations.
- The Clinic filed an amicus brief in the Ninth Circuit on behalf of a broad coalition of organizations and individuals (including several sci fi authors), supporting ComicMix’s assertion of fair use in response to copyright claims brought by the Dr. Seuss estate.
- The Clinic filed an amicus brief in the Ninth Circuit in support of the Center for Investigative Reporting, arguing in favor of broader access to government databases through FOIA. The brief was filed on behalf of five media organizations and sixteen data journalists.
- The Clinic filed a brief urging the United States Supreme Court to grant Google’s petition for a writ of certiorari and take the Oracle v. Google case, concerning the copyright status of Oracle’s Java API.
- The Clinic filed a brief on behalf of former magistrate judges in the United States Court of Appeals for the District of Columbia Circuit, providing practical advice for courts unsealing electronic surveillance orders.
Other Public-Facing Outputs
- The Clinic decided to make the fall 2019 version of the Cyberlaw Clinic Style Guide publicly available under a CC-BY 4.0 license. The guide offers general tips for strong, clear, persuasive legal writing; advice on editing and proofreading; and the style rules that the clinic follows in producing both internal and public-facing work products. It also contains special sections on drafting emails and writing for courts as well as appendices that give step-by-step instructions for checking defined terms and running redlines.
- The Clinic continued to lead the conversation on the intellectual property implications of the use of AI in creative practice. Working collaboratively with individuals who are themselves engaged in these practices, most significantly Sarah Schwettmann and SJ Klein of MIT, the Clinic published a set of template agreements for AI art, allowing creators to easily license input materials and define the terms of their collaborations. Jessica Fjeld was interviewed about the work, and gave a seminar on the topic at the Universidad de San Andres in Buenos Aires, Argentina.
We kicked off the fall semester of the 2019-20 academic year by adding Sybil Gelin to the team as our Project Coordinator. Our clinical staff continues with Chris Bavitz as Managing Director/Clinical Professor of Law, Jessica Fjeld as Assistant Director, Susan Crawford as Clinical Professor of Law, Kendra Albert as Clinical Instructor, and Mason Kortz as Clinical Instructor.
Alongside their teaching and Clinic practice duties, Chris Bavitz in the Clinic testified before a committee of the MA legislature and led the submission of written testimony joined by many at the Clinic and across the Berkman Klein Center for Internet & Society supporting creation of a commission to evaluate use of AI and related tools in government in the Commonwealth. Throughout the year, Jessica Fjeld led a research team analysing prominent principles for socially responsible AI, leading to the January publication of the Principled Artificial Intelligence white paper and a related data visualization. Jess presented on the work to various audiences, from Stanford to Seoul. And, Kendra Albert took the lead on launching the Initiative for a Representative First Amendment (IfRFA), an important new initiative based at the Clinic.
In lieu of the large public anniversary event we had planned, on March 25, 2020, the Clinic celebrated its 20th Anniversary with our spring clinical students in a session of the Seminar that featured HLS Professor Jonathan Zittrain and Boston University School of Law clinicians Andy Sellars (an alum of the Cyberlaw Clinic teaching team) and Tiffany Li. Our team and guests discussed with the class the history of the Cyberlaw Clinic and current issues in technology law and policy. The class then discussed the future of the Clinic, looking forward at possible clients and projects over the next twenty years. There was a strong focus on the Clinic’s social justice mission as we explored emerging trends in technology, law, and society. We look forward to working with students on cutting-edge, impactful projects for many years to come.
Image: Cyberlaw Clinic Staff and Students, Fall 2019,
Photographer: Carolyn Schmitt