Legal shorts, April 7, 2015: The mosaic theory extends Fourth Amendment protections to web data, and an evidence-based approach to intellectual property rights 

The mosaic theory: Why online searches fall under Fourth Amendment limitations

The legal system depends on analogies to adapt existing laws and regulations to new situations. It took decades for the courts to rule that telephone conversations were protected by Fourth Amendment search requirements: You need a warrant issued by a judge that states with particularity what it is you're searching for, where and when you're searching, and why you're searching for it.

Gabriel R. Schlabach states in Privacy in the Cloud: The Mosaic Theory and the Stored Communications Act that only a court order or administrative subpoena is required for the government to order companies to turn over to them the detailed customer records the companies have created. However, when you apply the mosaic theory to modern data collection methods, it's clear that extended surveillance violates a suspect's reasonable expectation of privacy even though each individual act of surveillance would not fall under the Fourth Amendment search protections.

Schlabach writes that "the government can analyze the information in the aggregate to infer private details about the suspect that no individual member of the public could reasonably discover by observing her for a short time." He proposes an amendment to the Stored Communications Act component of the Electronic Communications Privacy Act of 1986 that would incorporate the mosaic theory in the statute to require a warrant and probable cause for the government to request online content as well as "noncontent" metadata.

Schlabach's article appears in the Stanford Law Review, Vol. 67, pages 677-721.
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Losing 'faith' in intellectual property protections

Why does the law protect intellectual property? In a paper entitled Faith-based Intellectual Property, Stanford Law Professor Mark A. Lemley posits that IP rights have always been justified by their utility: granting such rights will make the world a better place. However, this position is based only on faith rather than on evidence. Lemley argues that the scholars who promote IP rights have turned their back on evidence that would confirm or contradict this faith-based assumption of social value.

The main problem with faith-based IP is the inability of its supporters to entertain any possibility that they could be wrong. The government allows the holders of IP rights to prevent use of the property by anyone else. This restriction on the freedom of individuals is justified by the social purpose of encouraging innovation and creation. Lemley points out that in a market-based economy, regulation requires some cost-benefit justification.

Scientists have studied IP rights extensively: from who acquires them, to how they use them, to how they affect the stock market, among other aspects. The consensus of all this research is that it remains uncertain whether patents, copyrights, and other IP have "a net positive effect on innovation," as researcher Lisa Ouellette states. To summarize Lemley's conclusion: It's complicated.

Many people have a strong vested interest in the IP status quo, and in the absence of any evidence in favor of or against our current approach to IP rights, it may make sense to continue things as they are. But "it's always been this way" doesn't cut it as a legitimate reason to restrict the freedom of individuals to make productive use of ideas that others may have thought of first. It does everyone a disservice to ignore data because it disagrees with your viewpoint, which Lemley argues some proponents of IP rights are doing. This retreat from evidence is what Lemley refers to as faith-based IP, and like a religion, it is a matter of belief among its proponents -- no evidence required.

To restate the obvious, intellectual property is not like real property, so the entitlement of property owners isn't automatically extendable by common-law traditions to IP. Lemley argues that it may make more sense to convey IP rights to the party who can make best use of the property rather than to the party who created it first. IP rights limit freedoms, particularly freedom of speech. It is imperative that the social benefit justify such freedom restrictions. How do we know whether this is so unless we examine the evidence? Otherwise we're making policy based on instinct.

Lemley's paper appears in the UCLA Law Review, Vol. 62, Issue 5. It was published on March 30, 2015.