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JOLTT V3 of Volume 3 Journal of Law and Technology at Texas THE EMPIRE STRIKES BACK: REASSERTION OF TERRITORIAL REGULATION IN CYBERSPACE Jon M. Garon PAYOLA 3.0? THE RISE OF INTERNET “PLAYOLA” Elizabeth Levin SMART HOME TECHNOLOGY: ABUSERS ADAPT TO TECHNOLOGY QUICKER THAN LAWS DO Kate Lanagan THE BORDER-SEARCH EXCEPTION: WHAT LEVEL OF SUSPICION IS REASONABLE IN THE DIGITAL ERA? Jessica G. Martz ASBESTOS AND ADDITIVE MANUFACTURING: ADDRESSING EARLY CONCERNS SURROUNDING MANUFACTURING 3D-PRINTING TECHNOLOGY USING ASBESTOS LITIGATION AS A MODEL Corban Snider Volume 3 2019-2020 Published by The University of Texas School of Law Hayley Ostrin [COMPANY NAME] [Company address] JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 5/2/20 12:25 PM Copyright © 2020 Journal of Law and Technology at Texas All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the publisher except for the use of brief quotations in a book review. First printing, 2020. JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM JOURNAL OF LAW AND TECHNOLOGY AT TEXAS Volume 3 • Spring 2019 THE EMPIRES STRIKE BACK: REASSERTION OF TERRORITORIAL REGULATION IN CYBERSPACE PAYOLA 3.0? THE RISE OF THE INTERNET “PLAYOLA” AND SMART HOME TECHNOLOGY: ABUSERS ADAPT TO TECHNOLOGY QUICKER THAN LAWS DO HAYLEY OSTRIN Editor in Chief DANIEL RANKIN Assistant Editor in Chief ELIJAH RODEN SETH YOUNG Vice President of Content Vice President of Membership GRACE BOWERS TRACY ZHANG Vice President of Outreach Technology Director GRACE BOWERS HAYLEY OSTRIN SETH YOUNG TRACY ZHANG Articles Editors Online Editors Staff Editors JULIE BALOGH MATTHEW HIGGINS ARUSHI PANDYA SHRAVAN DAVULURI AUSTIN LEE SARAH PROPST MELANIE FROH DANIEL MICHON LOGAN YOUNG KEVIN ST. GEORGE ARUNA NATHAN JESSICA ZHANG MARLA HAYES JACQUELINE ODUM ZACH ZHAO JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM JOURNAL OF LAW AND TECHNOLOGY AT TEXAS Volume 3 • Fall 2019 THE BORDER-SEARCH EXCEPTION: WHAT LEVEL OF SUSPICION IS REASONABLE IN THE DIGITAL ERA? AND ASBESTOS AND ADDITIVE MANUFACTURING: ADDRESSING EARLY CONCERNS SURROUNDING MANUFACTURING 3D-PRINTING TECHNOLOGY USING ASBESTOS LITIGATION AS A MODEL GRACE BOWERS Editor in Chief SETH YOUNG Managing Editor JACQUELINE ODUM KEVIN ST. GEORGE Chief Articles Editor Chief Online Editor SARAH PROPST MELANIE FROH TRACY ZHANG Content Director Development Director Technology Director ARUSHI PANDYA Administrative Director KEVIN ST. GEORGE GRACE BOWERS JACQUELINE ODUM DANIEL MICHON Articles Editors Online Editors Staff Editors HALEY ABLON GHADA GHANNAM MIKE NGUYEN DIVYA AHUJA CAITLIN HORNER ARUSHI PANDYA JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM Staff Editors (cont’d) JULIE BALOGH ADRIENN ILLESH GRAHAM POUGH CHARLIE BLAND RICHA KALOLA JACOB PRZADA MELITA CHAN ELIZABETH KNUPPEL SHLOKA RAGHAVAN KYLE CLENDENON CHELSEA LAUDERDALE GABRIELLA REGARD KELLY COMBS AUSTIN LEE SYDNEY SALTERS ZACHARY ANDREW COPLEN LEO LI PATRICK SIPE PRONOMA DEBNATH ANDREW LING WHITNEY WENDEL ROY FALIK NICK MARKWORDT PATRICK WROE MELANIE FROH BRANDON MAXWELL ZACH ZHAO KATE NELSON JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM FOREWORD As the Journal of Law and Technology at Texas (JOLTT) celebrates its fourth year, it is an exciting moment to reflect on the journal’s growth and accomplishments to date. From increased membership, official univer- sity sponsorship, packed networking and fundraising events, and publica- tion of topical content, JOLTT continues to stand out at The University of Texas School of Law for its entrepreneurial culture, its innovative perspec- tive, and its enthusiastic editing staff. The journal’s successes are due in part to JOLTT’s academic and financial supporters on- and off-campus, JOLTT’s active alumni network, and JOLTT’s amazing academic advisor, Professor Wendy E. Wagner. A huge thanks to all of you. JOLTT’s successes are also largely thanks to the grit and hustle of this year’s editorial board: Seth Young, Melanie Froh, Jacqueline Odum, Kevin St. George, Arushi Pandya, Sarah Propst, Tracy Zhang, Daniel Mi- chon, and Jacob Przada. This Volume 3 would not exist without you. Thank you for your hard work, energy, and determination. Finally, a special thanks to the State Bar of Texas Computer and Technology Section for its financial support of JOLTT in the publication of this Volume 3. We look forward to our continued relationship in exploring the future of law and technology. Sincerely, Grace Bowers Editor in Chief The Journal of Law and Technology at Texas JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM JOLTT volume 3 beginning (WITH MASTHEADS).docx (Do Not Delete) 4/29/20 9:34 AM TABLE OF CONTENTS THE EMPIRES STRIKE BACK: REASSERTION OF TERRITORIAL REGULATION IN CYBERSPACE……………………………………………………………1 By Jon M. Garon PAYOLA 3.0? THE RISE OF INTERNET “PLAYOLA”…...…………………...51 By Elizabeth Levin SMART HOME TECHNOLOGY: ABUSERS ADAPT TO TECHNOLOGY QUICKER THAN LAWS DO ………………………….………………………….…...81 By Kate Lanagan THE BORDER-SEARCH EXCEPTION: WHAT LEVEL OF SUSPICION IS REASONABLE IN THE DIGITAL ERA? ………………………………...…...97 By Jessica G. Martz ASBESTOS AND ADDITIVE MANUFACTURING: ADDRESSING EARLY CONCERNS SURROUNDING MANUFACTURING 3D-PRINTING TECHNOLOGY USING ASBESTOS LITIGATION AS A MODEL.…………………...…….….139 By Corban Snider INTENTIONALLY BLANK (Do Not Delete) 4/22/20 10:48 PM Garon - final formatting pt 1 JOLTT.docx (Do Not Delete) 4/29/20 9:36 AM 1 THE EMPIRES STRIKE BACK: REASSERTION OF TERRITORIAL REGULATION IN CYBERSPACE Jon M. Garon* “Cyberpower is now a fundamental fact of global life. In political, economic, and military affairs, information and information tech- nology provide and support crucial elements of operational activ- ities.”―Franklin D. Kramer, Cyberpower and National Security1 In cyberspace, as it was throughout the world, the most dominant political trend of 2018 was the rise of populism. Populist trends tend to be isolationist, na- tionalistic, and antagonistic to free trade and the free movement of capital. While analysts do not typically ascribe an anti-technology sentiment to the populist movement, much of the cyberspace technologies are controlled by U.S. multina- tional corporations. The dominance of several U.S. technology companies has shifted Internet and Cyberspace regulatory policy to the forefront of battles over globalization and trade between the U.S. and China as well as the U.S. and Europe. These companies have triggered protectionist legislation throughout Europe and Asia, and their lax privacy protections have triggered additional regulation within the U.S. at the state level. Because some of the government regulation is designed to enhance military readiness, it also serves to propel a populist agenda to promote greater militari- zation, which extends into cyberspace. This raises concerns regarding state-spon- sored cyberterrorism and the march toward autonomous, networked cyber and Ki- netic weaponry that may have horrific consequences. These trends, along with the continued expansion of criminal cyberattacks, increased identity theft, and the continued expansion of corrosive, hate-filled social media sources, define the shifts in cyberspace policy and practice. This review highlights the recent trends and * Dean and Professor of Law, Nova Southeastern University Shepard Broad College of Law; J.D. Columbia University School of Law 1988. These materials were prepared as part of the 2019 Winter Working Meeting of the American Bar Association, Business Law Sec- tion Cyberspace Law Committee meeting held January 24–26, 2019. 1 CYBERPOWER AND THE LAW 1 (Franklin D. Kramer, Stuart H. Starr & Larry K. Wentz eds., 2009). Garon - final formatting pt 1 JOLTT.docx (Do Not Delete) 4/29/20 9:36 AM 2 influences on cyber law with the aim to anticipate key issues that will shape the coming year. TABLE OF CONTENTS I. INTRODUCTION .......................................................................................3 II. THE CURRENT CYBER APPROACH: FOREIGN REGULATORS LEVERAGE ANTITRUST AND DATA PRIVACY LAWS TO ADVANCE PROTECTIONISM .5 a. EU Domestic Protectionism Under Antitrust Laws ....................5 b. EU Domestic Protectionism Under Privacy Laws ......................7 III. TERRITORIALITY BEYOND THE GDPR: REGULATORY AND RESTRICTIVE APPROACHES ........................................................................................14 IV. THE U.S. GETS INTO THE ACT ..............................................................18 a. A Californian Approach to Cyber Protection: The California Consumer Privacy Act of 2018 .................................................19 b. Other States’ Approach to Cyber Policy ...................................25 c. Expansion of Federal Export Controls to Address Cyber Concerns ....................................................................................28 d. U.S. Judicial Demand for Privacy Protection ...........................29 e. Why the State Cares: The Public Wants its Privacy Back ........31 V. CYBERSECURITY INSTABILITY IS MERELY A SYMPTOM: WHERE THE WORLD IS HEADED ..............................................................................37 a. Impact of Cyber Espionage on Policy .......................................37
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