A. Michael Froomkin

University of Miami | UM · School of Law

It should not be surprising that Americans say they are frustrated with their national institutions. Congress, particularly the Senate, responds poorly to the public’s needs and wants because it is increasingly unrepresentative of the electorate. Reform is difficult, however, because each state's “equal Suffrage” in the Senate is protected by a uni...

Full text is at https://ssrn.com/abstract=3114347

This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that an...

US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate -- a rate that is only set to increase. This article proposes 'Privacy Impact Notices' (PINS) -- modeled on Environmental Impact Statements -- as an initial solution to this problem.Data collection in publi...

Robots can pose -- or can appear to pose -- a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere w...

This paper, prepared for a presentation Sept. 22, 2011 at the Oxford Internet Institute’s Conference, A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, examines, contextualizes, and critiques an international trend towards the regulation of anonymity. The paper describes private incentives and initiatives during the...

This article examines the legal and political effects of the “Affirmation of Commitments” between the United States Department of Commerce (“DOC”) and the Internet Corporation for Assigned Names and Numbers (“ICANN”). The agreement purports to recast the public–private relationship at the heart of the management of the domain name system (“DNS”). T...

Robert Wood Johnson Foundation's Project HealthDesign included funding of an ethical, legal and social issues (ELSI) team, to serve in an advisory capacity to the nine design projects. In that capacity, the authors had the opportunity to analyze the personal health record (PHR) and personal health application (PHA) implementations for recurring the...

This paper addresses the legal response to data breaches in the US public sector. Private data held by the government is often the result of legally required disclosures or of participation in formally optional licensing or benefit schemes where the government is as a practical matter the only game in town. These coercive or unbargained-for disclos...

Bottom up governance. Self-organization. These are among the most talismanic virtue-words of modern political discourse. Yet the reality is that in politics, self-organization is rare, being hard to initiate and even harder to sustain. As Oscar Wilde once complained about socialism, it requires too many evenings. Governance as we tend to know it de...

This book chapter for "Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society" (New York: Oxford University Press, 2009) - a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr - discusses the sources of hostility to National ID Cards in common law countries. It traces...

This book chapter for "Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society" (New York: Oxford University Press, 2009) - a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr - surveys the patchwork of U.S. laws regulating anonymity and concludes the overall U.S. pol...

Increased legal harmonization reinforces the need for a new way to test legal rules. As legal diversity decreases, there are fewer alternate rules to draw from, and thus potentially useful de facto experimentation with alternative rules becomes rarer and more difficult. This article argues that the ability to test legal rules in virtual worlds coul...

During the past decade, rapid developments in information and communications technology have transformed key social, commercial and political realities. Within that same time period, working at something less than internet speed, much of the academic and policy debates arising from these new and emerging technologies have been fragmented. There hav...

During the past decade, rapid developments in information and communications technology have transformed key social, commercial and political realities. Within that same time period, working at something less than internet speed, much of the academic and policy debates arising from these new and emerging technologies have been fragmented. There hav...

These proceedings represent the perspectives and views of several experts and participants in the Internet Governance and ICANN process of the late 1990s and early 2000s.

National identification ("ID") cards appear increasingly inevitable. National ID cards have the potential to be repressive and privacydestroying, but it is also possible to design a system that captures more benefits than costs. Because the United States currently lacks a single, reliable credential, private businesses have trouble authenticating t...

In the spirit of Jurgen Habermas's project of linking sociological observation with legal philosophy, this Article analyses the Internet standards processes - complex nongovernmental international rulemaking discourses. It suggests that the Internet Engineering Task Force (IETF) standards discourse - a small, slightly formalized, set of cooperative...

The Internet Corporation for Assigned Names and Numbers (ICANN) is a private non-profit company which, pursuant to contracts with the US government, acts as the de facto regulator for DNS policy. ICANN decides what TLDs will be made available to users, and which registrars will be permitted to offer those TLDs for sale. In this article we focus on...

The increasingly uneasy coexistence between the Internet's domain-name system and established trademark law raises questions about whether the Internet's regulations are technically expert or democratic and fair. The domain-name system (DNS), which plays a key role in routing the large majority of Internet traffic, was designed at a time when there...

"The internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the 'root.' Control of the root provides singular power in cyberspace. "This article first describes how the United States government found...

The rapid deployment of privacy-destroying technologies by governments and businesses threatens to make informa-tional privacy obsolete. The first part of this article describes a range of current technologies to which the law has yet to re-spond effectively. These include: routine collection of transac-tional data, growing automated surveillance i...

Domain name management can be regarded as strictly an issue oftechnical stability, or can also be seen as a potential chokepointin an otherwise open, decentralized medium. In this panel, privacyadvocates and technical experts will discuss the potentialbottlenecks for free expression and privacy, such as the WhoisDatabase, and possible technical alt...

Governments and societies that bet on the market system become more materially prosperous and technologically powerful. The lesson usually drawn from this economic success story is that in the overwhelming majority of cases the best thing the government can do for the economy is to set the background rules - define property rights, set up honest co...

The regulation of anonymous and pseudonymous communications promises to be one of the most important and contentious Internet-related issues of the next decade. Resolution of this controversy will have direct effects on the freedom of speech, the nature of electronic commerce, and the capabilities of law enforcement. The legal resolution of the ano...

The proposed draft of Article 2B of the Uniform Commercial Code can be thought of as akin to a complex computer software suite which seeks to dominate a market by offering all things to all people. In this article I suggest, however, that Article 2B's electronic contracting rules interoperate poorly with existing digital signature laws, and with so...

The World Intellectual Property Organization’s plan to restructure the way Internet domain names in .com, .net, and .org are assigned and adjudicated is deeply flawed. The WIPO plan’s flaws include: bias, enabling censorship, zero privacy, intimidation, a tilting of the playing field, and a smorgasbord approach to law. This paper proposes an altern...

The World Intellectual Property Organization's Final Report on "The Management of Internet Names And Addresses: Intellectual Property Issues" is in many respects a substantial improvement on WIPO's Interim Report, RFC 3. The attempt to define "abusive registrations" represents a good-faith effort to define cybersquatting. While this new definition...

To a lawyer, two issues stand out as critical impediments to the widespread acceptance of digital signatures in electronic commerce: the unresolved nature of liability issues and the looming uncertainty about the nature of the public key infrastructure. These issues are so closely related as to be almost intertwined.

Today millions of technologically empowered individuals are able to participate freely in international transactions and enterprises, social and economic. These activities are governed by national and local laws designed for simpler times and now challenged by a new technological and market environment as well as by the practicalities and politics...

This article argues that the coming tide of electronic commerce will bring with it unprecedented opportunities for profiling of individual habits. Most consumers may find that their only practicable defense against profiling and data mining is to transact anonymously; as a result, the legal status of anonymous communication will become increasingly...

The article describes the role of "Certification Authorities" (CAs) in the emerging field of electronic commerce. CAs issue certificates to participants in electronic commerce that provide indicia of identity or authority, or supply a transactional timestamp. Several states, including California, Utah, Washington, Florida, Georgia, and New Mexico,...

This chapter presents the civil liberties aspects of the encryption policy debate. Issues include who is empowered to develop and disseminate encryption technology and balancing between individual liberties and government effectiveness in a world where a perfect crime is mathematically possible through cryptography.

Although the title for this paper set by the organizers of this Round Table discussion is "the international and national regulation of the Internet," the instructions which accompanied this title explained the topic as "the governance issues regarding ICANN" and "similar issues existing with the national registry activities". The tension between t...