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Current Issue

Volume 18, Number 1

  • In Search of the Golden Mean: Examining the Impact of the President's Proposed Changes to the CFAA on Combatting Insider Misuse

    How do we prevent privileged users from using their authorization to (1) misuse computers or data during authorized use, or (2) misuse data obtained during an authorized use, after the time of the authorized access? This article examines two structural changes to the statutory language of the CFAA, recommended by President Obama in the CFAA Amendment, aimed at answering these questions.  First, it examines the negation of the civil cause of action under the CFAA, which would occur if the factors set forth in subsection 18 U.S.C. § 1030(c)(4)(A)(i) were removed, as recommended by the CFAA Amendment. Second, the article examines the amended definition of “exceeding authorized access,” and analyzes how the change in language will impact the overall objective of combatting insider misuse of computers and data.
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  • Online Free Speech or Materially Supporting Terrorism?

    Do the “material support” statutes, which punish individuals who provide material support to terroristic groups, criminalize a citizen’s constitutionally protected right to association and freedom of speech where those rights are used to advocate for terrorist organizations? The First Circuit Court of Appeals recently failed to address the constitutional concerns presented by a conviction under Sections 2339A and 2339B, impliedly permitting a criminal conviction based only on a person’s online activity. By failing to adjudicate which behaviors triggered the federal material support statute, the First Circuit creates a dangerous precedent against online participants that seek to encourage discourse by chilling discourse not only within the context of terrorism, but also with regard to religious principles and practices.
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  • De-Clawing Katz: Emerging Technology and the Exclusionary Rule

    As technology changes, however, so do our reasonable expectations of privacy. Under Kyllo v. United States, 533 U.S. 27 (2001), courts—and, by extension, police officers—should interpret Fourth Amendment jurisprudence related to emerging technology broadly when the courts expand Fourth Amendment protections. A logical corollary to this rule is that courts and police officers should interpret Fourth Amendment jurisprudence related to emerging technology narrowly when the courts limit the scope of Fourth Amendment protections. Nonetheless, the Fourth Circuit’s holding in United States v. Stephens, 764 F.3d 327 (4th Cir. 2014), allows police officers or other federal agents to interpret binding Fourth Amendment jurisprudence too broadly—even when it relates to the ever-changing world of technology. Under the rule set forth by the Stephens court, there is nothing to deter federal officers from broadly interpreting precedent which limits Fourth Amendment protection, thereby de-clawing the Fourth Amendment and leaving our right to privacy at the mercy of advances in technology.
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  • The "Reasonable Certainty" Standard for Patent Claim Definiteness: The Standard's Backdrop and its Effect on the Balance of Power in Patent Infringement Actions

    In Nautilus v. Biosig Instruments, 134 S. Ct. 2120 (2014), the United States Supreme Court found that the Federal Circuit’s “insolubly ambiguous” standard for evaluating a patent’s definiteness was inadequate because it failed to comport with the competing concerns underlying section 112. The Court instead opted for a “reasonable certainty” standard, which provides that patent claims must be “viewed in light of the specification and prosecution history . . . [so as to] inform those skilled in the art about the scope of the invention with reasonable certainty.” The addition of the reasonableness inquiry into the analysis means that indefiniteness will move away from a pure question of law and into a factual inquiry. Whether a disputed claim term is indefinite has traditionally been seen as part of claim construction but, following Nautilus, has the potential of being shifted to a question for trial.
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