FALL 2010
Cyberlaw
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  


Cyberlaw, Fall 2010

FINAL EXAMINATION

Instructions

1.  E-mail at-home examination.  This is an e-mail, at-home examination.  Subject to the limitations stated below, you are free to take it at any time and place of your choosing.

2.  Limitations.  Your completion of this examination is subject to the following limitations:
    a.  Time-spent limitation: three hours.  You may work a total of no more than three hours on this examination (including any related research and thinking), from the time you begin to read the instructions until the time you send in your answers.  Except under extraordinary circumstances, such as an intervening work or family emergency, your work time should be continuous and uninterrupted.  Each question has a suggested time limit, and the weight of each question for grading is proportional to the suggested time for answering it.
    b.  Elapsed-time limitation: 24 hours.  Your answers will be due by noon Wednesday, December 8, 2010, no more than twenty-four hours after the exam is made available to you on the Web or by e-mail.
    c.  Word limit: 2,500 words.  Your answers for all questions together (i.e., for the entire examination) must total no more than 2,500 words.  If your answers exceed this limit, I will arbitrarily stop reading after the 2,500th word, and you will lose points for any and all material thereafter.
    If you inadvertently exceed the word limit, it will be to your advantage to delete less important material and to keep more important material that is likely to garner you more points.  (Most word-processing programs count words automatically; check “Properties” under “File” or consult your program’s “Help” screens.)
    d.  No Consultation.  During the entire examination interval (from the time you receive the examination until you submit your answers), you may not consult with anyone regarding the examination, this course, the subject matter of this course, or any related case, regulation, or statute.
    e.  No “canned” answers.  These questions are designed to elicit specific answers in response to specific fact patterns and specific queries.  Nonresponsive material, no matter how correct, cogent, or even brilliant, will receive no credit whatsoever.  I will enforce this rule even more strictly than usual, in order to discourage anyone from using “canned” material prepared in anticipation of the questions to be asked.
    f.  Honor system.  Please include the usual honor-system oath and your exam number at the end of your examination.  (Your exam number and your return e-mail address—which will be separated from your answer file before grading—will constitute your electronic signature under Ohio’s Uniform Electronic Transactions Act and your agreement to conduct this transaction by electronic means.)
3.  Materials.  Because this is an at-home exam, you may use any written materials that you have on hand, provided they are: (1) published or (2) prepared by you.  You may also use your computer to browse the Web, including the material posted for this course on the Law School’s Website.  However, the questions have been designed so that the following materials should be sufficient: (1) the casebook (if any) and Website for this class (including any materials from it that you have downloaded, printed out and annotated), (2) any statutory supplement that you have used for this class (including your own, but no one else’s, annotations); and (3) an outline that you have prepared.  I encourage you to make your outline short, both so it will be usable and so you will have an “overview” of the course.

4.  Strategy for Answering the Questions.  
    a.  Outlines.  To the extent intelligible, outlines will receive partial credit, but you should have time to write complete answers.
    b.   Additional facts.  Please do not assume or make up additional facts.  Although the stated facts may resemble real situations, all of the stated facts are fictitious (except as noted).  All facts needed to answer each question should appear in the question itself.  If you think you need additional information to answer a question fully, state what additional information you need, how you would use it, and how it would affect your conclusions, but please be brief.  Do not waste time answering questions or addressing issues not fairly presented by the given facts.
    c.  Organization. Especially in view of the word limit, try to make every word count.  Well-organized answers will receive extra credit, and poor organization may result in a loss of points.
    d.  Legal authority.  You will receive points for identifying specific and relevant legal authority, such as a particular statutory section, subsection, or decision.  You may use reasonable abbreviations, as long as they are clear.  For example, you may refer to FCC v. Pacifica Foundation simply as “Pacifica” or “the George Carlin dirty-words case.”  Where the law is unclear, you may wish to make analogies to or distinctions from precedent, based on the fact pattern in the question.
    e.  Fact pattern questions: using IRAC.  Some questions are typical law-school examination questions involving complex fact patterns.  You should answer them by identifying relevant issues and applying the IRAC formula (issue, rule, analysis, and conclusion).  Do not forget to state a conclusion, as well as your confidence in its certainty, for each issue and subissue.  You should be aware, however, that a correct conclusion with little analysis will garner you fewer points than an incorrect conclusion with thoughtful and thorough analysis.
    Try to weave as many specific facts as possible into your analysis, make and evaluate arguments for both sides, and determine the relative importance of issues and arguments.  Where alternative legal rules exist, you should state them and indicate which is the majority view, the current trend, or otherwise the better rule, and why.  (Stating why one variant rule is better than another often involves policy.)
    You will not have enough time or space to cover all issues or arguments in exhaustive detail.  Therefore you should focus your discussion on the issues, rules, and arguments that are most important.  Grading will be based in part on your judgments of relative importance and how specifically you address the stated facts.  Analogies to and distinctions from precedent, if useful and relevant, will receive extra points.
    f.  Logical “Trees.”  Do not neglect to analyze all relevant branches of a logical tree, even if your analysis suggests that one branch should be cut off.  That is, try to cover all important issues, even if you think that the resolution of a single issue should control the result.  For example, you should discuss infringement—insofar as the facts permit—even if you conclude that the validity of a plaintiff's trademark or copyright is doubtful. (In other words, pretend that you are a district court, which might be reversed on any point, rather than a court of last resort.)
    If an issue clearly raised by the facts is easy to resolve, you may say so without extensive discussion, as long as you say why.  You should not waste time and space elaborating “giveaway” issues.   Where the issues are close or not clearly resolved, however, you should analyze them completely.
    g.  Policy.  Please discuss policy only where the question calls for a discussion of policy, or where discussion of policy is necessary to resolve a legal issue.  You should always discuss the “law” first, including black letter law, trends, and minority views, before turning to policy for confirmation or to resolve doubt.  Where the resolution of an issue is unclear, however, you should analyze how applicable policy affects your conclusion.  (The last two questions here call for some discussion of policy and should be treated accordingly.)
5.  Call of the Question.  BE SURE TO READ THE CALL OF EACH QUESTION CAREFULLY AND TO ANSWER ONLY THE QUESTION(S) ASKED.

6.  Submitting your Answers.  Detailed instructions for submitting your answers appear at the end of the examination.  Please follow them carefully.

Good luck!


Question 1
(Ninety Minutes)


A

Pamela is a brilliant recluse.  She works out of her home at various high-technology jobs, including computer programming—all via electronic communication.  She seldom leaves her home and is obsessed with personal privacy.

Pamela interacts with the outside world mostly electronically, and very carefully.  She has the latest, high-powered computer, with multiple microprocessor chips, a Unix operating system, and robust encryption routines.  All the files that she stores on her terabyte (1,000 gigabyte) hard drive are encrypted during the storage process and decrypted upon retrieval.  The encryption routines that Pamela uses are so powerful that exporting them would be a criminal offense.

Pamela has devised a means to fight "cookies" on her computer.  She wrote a computer program that automatically removes all cookies from her cookie folder, except for ones from Internet domains (commercial websites) that she approves and has listed in advance.  She has set this program to run automatically, in the "background."  It cleans out her cookie folder several times per hour.


B

There are, however, some holes in Pamela's privacy armor.  She loves to shop on line.  She has accounts with nearly all the leading shopping websites and a number of smaller on-line stores whose privacy policies she has reviewed and approved.

The privacy policies of the sites she uses promise to use information that she provides only for transactions that she initiates.  But several of those policies say that information may be transferred to affiliates of the primary website and even to third parties to complete those transactions.

Pamela also likes to use on-line e-mail services, such as GoMail, Wahoo Mail, and Heatmail.  These services all provide on-line e-mail with a convenient web interface, professional backup, and automatic virus checking.  Each service also provides an option for encrypting messages between Pamela's computer and the e-mail service's server, which Pamela uses.


C

While Pamela seldom leaves her home, she has several on-line friends.  One of them, named Joe, used to work with Pamela at a software-development company when Pamela was less reclusive.  Pamela often sends Joe pages of her original computer code for his review and critique, and Joe provides valuable insights.  Usually, Pamela sends Joe these excerpts of code via the on-line e-mail services that she uses.  She trusts Joe not to rip off her ideas or her code, and he has never disappointed her.

One of Pamela's personal goals is to stop working for others and to open her own software business, on line of course.  She begins to develop code for a new program that almost every small business could use (the "Program").  As she develops and refines the Program, she sends numerous excerpts of code to Joe for his review and comment. These excerpts reveal the key features of her program to Joe, as they would to any trained programmer.  Some of them are only a few lines long; others are hundreds or thousands of lines.


D

Dante's Advertising is a start-up company that provides data to on-line advertisers.  It has two new pieces of technology that it believes will revolutionize targeted advertising.

Dante's first piece of new technology is special bit of javascript programming (the "Javascript"), which can bypass normal control of cookies on users' computers.  It does this by copying itself onto the user's hard drive and running whenever the user visits certain websites.  The Javascript also creates a hidden, encrypted folder on the user's hard drive, inaccessible to unsophisticated users, where a new type of cookie can be stored.  The new type of cookie is not just a single line of code.  Instead, it can contain files and data of any length.  Dante's calls it a "New Cookie."

Dante's second piece of new technology is a "Key Logger," which is part of the Javascript. Whenever the user visits designated websites, the Key Logger records whatever the user types on his or her keyboard, keystroke by keystroke, and stores it in a New Cookie.  Together, the Key Logger and New Cookie technologies, in principle, allow Dante's to store in a hidden New Cookie, and later access, anything that any user types on his or her keyboard while visiting the selected sites.  Dante's uses this technology primarily to see what products users order on various commercial websites.  It then analyzes the results and sends them to clients on line, in real time, for targeted advertising purposes.
 


E

As a start-up company, Dante's is eager to break into the targeted advertising business.  It wants to demonstrate its targeted advertising skills to all the major on-line stores and e-mail services.  It asks them—including the ones at which Pamela shops and the e-mail services that she uses—for permission to run a demonstration.  Some give permission; some withhold it; and some don't reply.  Regardless, Dante's goes ahead and uses its new technologies to record in New Cookies whatever visitors to these on-line stores and e-mail services do or write while there.  In the process, it sends the Javascript and Key Logger to numerous on-line visitors to these sites and installs them on their hard drives.

In Pamela's case, her New Cookies include a complete record of all the on-line stores she visits, every item she looked at and bought there, and the complete text of every e-mail that she sent.  The recording process goes on for several months.  Among the records are all Pamela's e-mails to Joe containing the excerpts of computer code for the Program.  Because these New Cookies are encrypted and reside are in a folder separate from the normal cookie folder, Pamela's special program to control cookies does not affect them, and Pamela is unaware of their existence.

A disgruntled employee of Dante's named Damon leaves its employ during this period.  He discloses its new technologies—including the Javascript, Key Logger, New Cookies and their testing—to two dozen companies in the targeted advertising world.  As a result, several unfortunate things happen to Pamela, all in rapid succession.  First, her e-mail accounts are deluged with spam and unprecedented volumes of advertising, much of which is uncannily related to products she already viewed and/or bought.  Second, her nasty ex-husband and several unsympathetic relatives make fun of her reclusiveness and her purchases.  They torment her with incessant unflattering and taunting e-mails.  Finally, an arch-rival from her old industry programming days begins to sell on line software for small businesses much like the Program.  Upon examination by Pamela, this software proves to have numerous pages of code apparently taken verbatim from Pamela's e-mails to Joe.

All these things happening together cause Pamela to suffer deep emotional distress.  She falls into a depression and seeks psychiatric help (on line, of course).  She soon abandons her new business and becomes even more reclusive.


F

After some weeks, Pamela recovers enough to seek legal advice.  She has come to you to find out what legal recourse she may have against Dante's, Damon, and the various users of her private data, including her ex-husband, her nasty relatives, and the rival programmer.  She would like to explore both civil actions and criminal complaints.  Please advise Pamela of her options, all open questions and defenses, and likely outcomes, including remedies.  Be sure to explore all relevant causes of action and criminal charges that we have studied in this course.  Can Pamela can recover for her emotional distress?  What remedy, if any, might she seek for the imminent destruction of her nascent business?   Where relevant, briefly discuss the impact of privacy policies, but do not otherwise speculate on contract terms or contract actions.  




Question 2
(Forty-Five Minutes)


    "In a series of complex and often splintered decisions, the United States Supreme Court thrice refused to let Congress protect kids from pornography on the Internet.  Yet a prestigious lower court allowed Congress to stop the dissemination of computer code designed to help people watch movies at home.  Why do our courts seem to think that pornography is more important than innocent entertainment and the technology behind it?"
Write an essay answering this question, with attention to the cases we have studied and thorough analysis of the assumptions (explicit and implicit) underlying the question and the two preceding sentences.  Make your answer intelligible both to lawyers who have not taken this course and to ordinary people, such as your spouse, kids, or parents.  Your grade will not depend upon your point of view, but on accuracy, balance and completeness in reporting what the courts actually did and why they did it and the simplicity and directness of your explanation.



Question 3
(Forty-Five Minutes)


In this course we have studied a number of modern statutes.  They include the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the Digital Millennium Copyright Act (17 U.S.C. §§ 512, 1201-1204), and the immunity provisions of the Communications Decency Act (47 U.S.C. § 230).  Which of these statutes is most comprehensible, to lawyers and to ordinary people?  Which is clearest, simplest, most effective and likely to be most efficient and administrable in operation, as reflected in the cases we have studied?  Write an essay answering these questions and selecting the "best" congressional work product from among these statutes.  Be sure to explain why you think it is best, with comparisons to the others.

At the end of your essay, and with your comparison in mind, draft a short and simple statute, of no more than 300 words, to allow consumers to protect their on-line privacy from data collectors.  Draft your statute as technology-independent as possible, but make sure it contains the following features: (1) a requirement that data collectors provide some way for consumers to "opt out" individually from all data collection at once, (2) civil and criminal sanctions for failing to provide such a way or to respect consumers' choice in using it, and (3) a requirement or condition (your choice) that whatever way is used not unreasonably interfere with future development of the Internet.  Your grade will depend not upon your point of view or which statute you pick as your model, but how well and how specifically your support your analysis and how clear, comprehensible and administrable is the statute that you draft.


END OF EXAMINATION
INSTRUCTIONS FOR SUBMITTING YOUR ANSWERS APPEAR BELOW



INSTRUCTIONS FOR SUBMITTING YOUR ANSWERS

Please take all of the following steps in submitting your answers, before the deadline for submission:

1.  Include honor-code statement.  Make sure that your honor-code statement appears at the end of your answer file.  (Your examination number and e-mail header will constitute your signature under Ohio’s Uniform Electronic Transactions Act and your agreement to conduct this “transaction” by electronic means.)

2.  Include your examination ID number.  Type your examination ID number at the end of your answer file and double-check it.  To avoid accidental breach of anonymity, make sure that your answer file contains no other identifying information.

3.  Spell-check and finalize.  Spell-check your answer file and make any necessary changes.  Check the total number of words and modify as necessary.

4.  Save your answer file with the anonymous ID.  Save your answer file on your hard drive, with your honor-code statement and examination ID number at the end of the file.  When you save your file, use the file name “2010 Cyberlaw Exam” and no other.  (If you use another file name, your anonymity may be compromised.)

5.  Save your file in Rich Text Format (.rtf).  Some word-processing formats have compatibility problems, so please save your answer file in Rich Text Format.  Use the “Save As” feature of your Word Processor; then click on the double arrow to the right of the “File Type” field in the “Save As” dialogue box and select “Rich Text Format (RTF).”  Be sure to verify that this option appears in the “File Type” field before you click the “Save” button.  Then check to see that a file with the correct name and an “.rtf” file extension appears in your file folder.  (You may have to click on “View” : “Details” to see the file extension.)

6.  Attach your answer file to an e-mail message.  Send your answer file, in RTF format, as an e-mail attachment to your message, not as part of the message itself.  The “Subject” line for your e-mail message should be “2010 Cyberlaw Exam,” and the text of the message should read “Attached are my answers.”  Please double-check that your answers appear as an attached file, not embedded in your e-mail message.

(I or an assistant will use your e-mail cover messages only to check that everyone has submitted answers.  I will not grade any exam until an assistant has “anonymized” the answers by separating the attached files from the e-mail messages and sending the attachments to me with no identifying information other than the examination ID number included in each file at the end.)

7.  Submit your answers by e-mail.  Send your cover message, with your answer file attached, to all of the following four addresses:

      jdratler@gmail.com
      dratler@uakron.edu
      abthong@yahoo.com
      sfauppe@uakron.edu
(If you have not already prepared an address list in response to the test message, please cut and paste each address from this list into your e-mail program’s “address” or “TO” field to avoid typing errors; then double-check all addresses, delimiters, and punctuation.)

8.  Print and retain a paper copy of your answer file.  Immediately after sending your e-mail message, print out a copy of your answers and staple the pages together.  Then sign and date your answers and record the exact time of your printout on the title page.  (If there is an e-mail mixup, this paper copy will serve to demonstrate what you wrote and when, in accordance with the honor system.)


HAVE A GOOD WINTER BREAK!