Current Issue

Volume 2019 — Issue 1 (Spring)


"Disclosing Genetic Test Results to The Patient’s Relatives:
How Does the Law Influence Clinical Practice?
" by Roy Gilbar & Sivia Barnoy
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 Disclosure of genetic test results to relatives is the subject of extensive scholarly debate and empirical research. This is because genetic test results may have serious implications not only for the patient but also for the relatives. However, the patient’s legal right to confidentiality makes disclosure to relatives problematic if the patient refuses disclosure. One aspect which has not yet received sufficient scholarly attention is how clinicians deal with the legal framework within which they operate. This Article aims to fill this gap by presenting findings from a qualitative study conducted with Israeli clinicians who provide counseling and treatment to healthy women undergoing BRCA1/2 testing. The findings indicate that clinicians follow the law. They respect their duty of confidentiality and generally refrain from informing the relatives without the patient’s consent. However, the findings also indicate that they find the lawrestrictive when patients explicitly refuse to inform their relatives. Furthermore, the law does not help clinicians to resolve the difficulties regarding patients’ passive non-disclosure, namely when the patient agrees to inform the relatives in the encounter with the clinician but refrains from doing so after leaving the clinician’s office. In addition, the law does not help clinicians to overcome thepractical difficulties of tracking relatives when patients are not cooperative and refuse to provide contact details. These findings lead to a discussion about methods that could overcome the difficulties regarding disclosure to relatives, including the option of imposing a legal duty on clinicians to inform the relatives. The position expressed in this Article is that the law should leave it to the discretion of the clinicians to decide whether or not to initiate a process of disclosure without the patient’s consent. In tort law terminology, a legal duty to the relatives should be recognized, but the question of whether and how to initiate a process of disclosure without consent should remain at the discretion of clinicians. Such a legal rule, which shifts the discussion from the duty stage.

"'Cracks in the Armor: Legal Approaches to Encryption " by Olivia Gonzalez 
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Encryption protects digital information from unauthorized access by making it illegible to anyone without an encryption key. While this ensures the security of digital communications, it also prevents the government from accessing evidence it needs for national security investigations. This creates an apparent conflict between the private sector’s desire for strong encryption and the government’s interest in “back door” access, thus raising the normative question of whether governments should be able to legally require companies to maintain “back doors” to encrypted information. In view of the significant impact of this debate on economic, privacy, security, and diplomatic interests of states around the world, this Article explores two lines of inquiry: First, what legal frameworks should courts and legislators use to approach encryption? Second, which framework produces the best policy outcomes—in particular, which stakeholders are benefitted or harmed under each approach? To answer these questions, this Article examines legal approaches to encryption in the U.S. and U.K., countries with contrasting policies on the subject. It evaluates the pros and cons of each approach, situating encryption within existing legal frameworks. This includes the First Amendment argument of “code as free speech,” government investigatory powers under the Fourth Amendment, and the U.K.’s Investigatory Powers Act permitting government-mandated back doors. This is the first paper clarifying, surveying, and comparing the legal approaches to encryption in the U.S. and U.K. Such a comparative analysis explaining the consequences of each legal approach could help countries choose the most effective approach to encryption. By applying existing laws to the novel problems posed by encryption, this Article generates new evidence against the implementation of encryption back doors. 

"“How Tweet It Is!”: Have Twitter Archives Been Left in the Dark?" by Seemantani Sharma 
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Social media is an increasingly prevalent method of communication. The information disseminated through these platforms is by nature ephemeral and at risk of loss. This has led institutions to build social media collections for posterity. The value of preserving social media for research purposes is increasingly important, yet significant legal issues must be addressed to make such collections viable.

While there is ample scholarly discourse on legal issues in web archiving, the same is not true for the newer sub-field of social media archiving. In this vein, this Article takes Twitter as a case study to analyze the potential legal issues that libraries and archives might encounter while developing a Twitter archive. Three issues were found to be most pertinent: (i) Copyright (ii) Privacy and (iii) Right of Publicity. While copyright is strictly a legal issue, privacy and right of publicity also have ethical paradigms to it calling for all stakeholders in the libraries and archives community to brainstorm. 

"Semi-Secure Numbers? Augmenting SSNs in The Authentication Use Case" by Kathryn E. Witchger, Kevin Chen, Jon Song, Alex Wortman, & Joshua M. Zweig
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 Identity theft costs Americans more than $15 billion per year. Central to this problem is that Social Security Numbers (SSNs) serve a dual role as identifiers and authenticators. As unique identifiers, SSNs are used to retrieve an individual’s records, such as a credit report. In this role, they are not meant to be secret. As authenticators, an SSN is used to prove identity. In this role, SSNs must be secret to be secure. This Article proposes a way to resolve the dual-purpose tension by layering smart cards on top of existing SSN-based processes in a way that is reconcilable with legal and political considerations. The card-based digital signatures act as a second factor of authentication to increase the security of processes in which SSNs act as authenticators, while not limiting or replacing the use of SSNs as identifiers. This leaves the tremendous economic value of SSNs as identifiers unabridged. Part I is an overview of the SSN system while Part II is a description of the dual-purpose problem. Part III describes the technical details of the smart card solution. Part IV proposes policy recommendations to foster the deployment and wide adoption of this system for the benefit of the American people.  

Recent Development:

"Science and Ethics of Algorithms in the Courtroom"  by Kia Rahnama
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 This Article analyzes the societal and cultural impacts of greater reliance on the use of algorithms in the courtroom. Big-data analytics and algorithms are beginning to play a large role in influencing judges’ sentencing and criminal enforcement decisions. This Article addresses this shift toward greater acceptance of algorithms as models for risk-assessment and criminal forecasting within the context of moral and social movements that have shaped the American justice system’ s current approach to punishment and rehabilitation. By reviewing salient problems of scientific uncertainty that accompany the use of these models and algorithms, the Article calls into question the proposition that greater reliance on algorithms in the courtroom can lead to a more objective and fair criminal sentencing regime. Far from liberating the society from the biases and prejudices that might pollute judges’ decision-making process, these tools can intensify, while simultaneously concealing, entrenched cultural biases that preexist in the society. Using common themes from the field of Science and Technology Studies (STS), including boundary-work analysis and Public Understanding of Science (PUS), this Article highlights unique technical characteristics of big-data analytics and algorithms that feed into undesirable and deeply-held values and beliefs. This Article draws attention to specific gaps in technical understanding of algorithmic thinking, such as the black box of algorithms, that can have discordant impact on communicating uncertainty to the populace and reduce accountability and transparency in regulating the use of algorithms. This Article also provides specific policy proposals that can ameliorate the adverse social and cultural effects of incorporating algorithms into the courtroom. The discussion of policy proposals borrows from the STS literature on public participation in science and encourages adoption of a policy that incorporates diverse voices from political actors, most affected communities, and the offenders themselves. This Article was accepted into the ST Global Conference, and I presented the Article on March 23, 2018.


"The Waiting is the Hardest Part: The Music Modernization Act’s Attempt to Fix Music Licensing" by Daniel S. Hess
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"Regulating Facts: A Procedural Framework for Identifying, Excluding, and Deterring the Intentional or Knowing Proliferation of Fake News Online" by Andrew J. Schuyler
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"Fighting Cheaters in Games After Blizzard v. Bossland: The History and Future of Anti-Cheats Litigation" by Tianyue Zhang
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