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34:2 BERKELEY TECHNOLOGY LAW JOURNAL 2019 Pages 343 to 704 Berkeley Technology Law Journal Volume 34, Number 2 Production: Produced by members of the Berkeley Technology Law Journal. All editing and layout done using Microsoft Word. Printer: Joe Christensen, Inc., Lincoln, Nebraska. Printed in the U.S.A. The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences— Permanence of Paper for Library Materials, ANSI Z39.48—1984. Copyright © 2019 Regents of the University of California. All Rights Reserved. Berkeley Technology Law Journal University of California School of Law 3 Boalt Hall Berkeley, California 94720-7200 [email protected] http://www.btlj.org BERKELEY TECHNOLOGY LAW JOURNAL VOLUME 34 NUMBER 2 2019 TABLE OF CONTENTS ARTICLES AUTHORS AND MACHINES ............................................................................................... 343 Jane C. Ginsburg & Luke Ali Budiardjo LEGALLY COGNIZABLE MANIPULATION...................................................................... 449 Ido Kilovaty SECRECY & EVASION IN POLICE SURVEILLANCE TECHNOLOGY ........................... 503 Jonathan Manes UNCONSCIONABILITY 2.0 AND THE IP BOILERPLATE: A REVISED DOCTRINE OF UNCONSCIONABILITY FOR THE INFORMATION AGE ...................... 567 Amit Elazari Bar On SUBSCRIBER INFORMATION The Berkeley Technology Law Journal (ISSN1086-3818), a continuation of the High Technology Law Journal effective Volume 11, is edited by the students of the University of California, Berkeley, School of Law and is published in print three times each year (March, September, December), with a fourth issue published online only (July), by the Regents of the University of California, Berkeley. Periodicals Postage Rate Paid at Berkeley, CA 94704-9998, and at additional mailing offices. POSTMASTER: Send address changes to Journal Publications, University of California, Berkeley Law— Library, LL123 Boalt Hall—South Addition, Berkeley, CA 94720-7210. Correspondence. Address all correspondence regarding subscriptions, address changes, claims for non-receipt, single copies, advertising, and permission to reprint to Journal Publications, University of California, Berkeley Law—Library, LL123 Boalt Hall—South Addition, Berkeley, CA 94705-7210; (510) 643-6600; [email protected]. Authors: see section titled Information for Authors. Subscriptions. Annual subscriptions are $65.00 for individuals and $85.00 for organizations. Single issues are $30.00. Please allow two months for receipt of the first issue. Payment may be made by check, international money order, or credit card (MasterCard/Visa). Domestic claims for non-receipt of issues should be made within 90 days of the month of publication; overseas claims should be made within 180 days. Thereafter, the regular back issue rate ($30.00) will be charged for replacement. Overseas delivery is not guaranteed. Form. The text and citations in the Journal conform generally to the THE CHICAGO MANUAL OF STYLE (16th ed. 2010) and to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). Please cite this issue of the Berkeley Technology Law Journal as 34 BERKELEY TECH. L.J. ___ (2019). BTLJ ONLINE The full text and abstracts of many previously published Berkeley Technology Law Journal articles can be found at http://www.btlj.org. Our site also contains a cumulative index; general information about the Journal; the BTLJ Blog, a collection of short comments and updates about new developments in law and technology written by BTLJ members; and BTLJ Commentaries, an exclusively online publication for pieces that are especially time-sensitive and shorter than typical law review articles. INFORMATION FOR AUTHORS The Editorial Board of the Berkeley Technology Law Journal invites the submission of unsolicited manuscripts. Submissions may include previously unpublished articles, essays, book reviews, case notes, or comments concerning any aspect of the relationship between technology and the law. If any portion of a manuscript has been previously published, the author should so indicate. Format. Submissions are accepted in electronic format through Scholastica online submission system. Authors should include a curriculum vitae and resume when submitting articles, including his or her full name, credentials, degrees earned, academic or professional affiliations, and citations to all previously published legal articles. The Scholastica submission website can be found at https://scholasticahq.com/law-reviews. Citations. All citations should conform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). Copyrighted Material. If a manuscript contains any copyrighted table, chart, graph, illustration, photograph, or more than eight lines of text, the author must obtain written permission from the copyright holder for use of the material. DONORS The Berkeley Technology Law Journal and the Berkeley Center for Law & Technology acknowledge the following generous donors to Berkeley Law’s Law and Technology Program: Partners COOLEY LLP HOGAN LOVELLS ORRICK, HERRINGTON & FENWICK & WEST LLP SUTCLIFFE LLP WHITE & CASE LLP Benefactors BAKER BOTTS LLP MORRISON & FOERSTER LLP COVINGTON & BURLING LLP POLSINELLI LLP FISH & RICHARDSON P.C. SIDLEY AUSTIN LLP JONES DAY WEIL, GOTSHAL & MANGES LLP WILMER CUTLER PICKERING HALE KIRKLAND & ELLIS LLP AND DORR LLP WILSON SONSINI GOODRICH & LATHAM & WATKINS LLP ROSATI MCDERMOTT WILL & EMERY WINSTON & STRAWN LLP Corporate Benefactors ATLASSIAN LITINOMICS COMPUTER & COMMUNICATIONS MICROSOFT CORPORATION INDUSTRY ASSOCIATION CORNERSTONE RESEARCH MOZILLA FUTURE OF PRIVACY FORUM NERA ECONOMIC CONSULTING GOOGLE, INC. NOKIA HEWLETT FOUNDATION, THROUGH THE CENTER FOR LONG-TERM PALANTIR CYBERSECURITY INTEL RLM TRIALGRAPHIX INVENTIONSHARE THE WALT DISNEY COMPANY Members KILPATRICK TOWNSEND & BAKER & MCKENZIE LLP STOCKTON LLP CROWELL & MORING KNOBBE MARTENS LLP DESMARAIS LLP KWAN & OLYNICK LLP DURIE TANGRI LLP MORGAN, LEWIS & BOCKIUS LLP FINNEGAN, HENDERSON, FARABOW, PAUL HASTINGS LLP GARRETT & DUNNER, LLP GTC LAW GROUP LLP & AFFILIATES ROBINS KAPLAN LLP HAYNES AND BOONE, LLP ROPES & GRAY LLP HICKMAN PALERMO BECKER SIMPSON THACHER & BARTLETT LLP BINGHAM IRELL & MANELLA LLP TROUTMAN SANDERS LLP KEKER VAN NEST & PETERS LLP VAN PELT, YI & JAMES LLP WEAVER AUSTIN VILLENEUVE & KILBURN & STRODE SAMPSON LLP BOARD OF EDITORS 2018–2019 Executive Board Editor-in-Chief Senior Articles Editors Senior Executive Editor ELLE XUEMENG WANG LAURA KELLEY ANGELA LYONS-JUSTUS ALEX BARATA Managing Editor Senior Production Editor YARDEN KAKON CHRISTOPHER BROWN MEGAN MCKNELLY Senior Scholarship Editors Senior Annual Review Editors Senior Online Content Editor AMIT ELAZARI CHRIS CHUANG KATHERINE BURKHART NOMI CONWAY KATHARINE CUMMINGS Editorial Board Submissions Editors Production Editors Technical Editors DANIEL CHASE CHELSEY MORI MARIA BELTRAN BEATRICE NYBERT HAILEY YOOK COLIN RAVELLE JANELLE LAMB LOUISE DECOPPET Annual Review Editors Notes & Comments Editors Symposium Editors JULEA LIPIZ NICK CALCATERRA DARIUS DEHGHAN AISLINN SMALLING RYAN KWOCK JESSICA HOLLIS Web Content Editors Podcast Editor LLM Editors CONCORD CHUNG MIRANDA RUTHERFORD CRISTINA DE LA PAZ CHANTE ELIASZADEH MAYARA RUSKI AUGUSTO SA Member Relations Editor Alumni Relations Editor External Relations Editor CLARA CHOI NIR MAOZ ANDREA SHEN Articles Editors CHELSEA ANDRE NITESH DARYANNANI CRISTINA MORA TIAGO AQUINO LESLIE DIAZ COURTNEY REED SAVANNAH CARNES GRACE FERNANDEZ WESLEY TIU ELSIE CHEANG VESTA GOSHTASBI MEI XUAN SHERILYN CHEW ALEXANDER KROIS LI ZHANG NINA MILOSAVLJEVIC MEMBERSHIP Vol. 34 No. 2 Associate Editors MADISON BOWER YUAN FANG ARYEH PRICE MUHTADI CHOUDHURY HARRISON GERON MARTA STUDNICKA MATTHEW CHUNG ADRIAN KINSELLA THERESA TAN ELLA PADON CORREN CLARA KNAPP EMILEE WU CHRISTINA CROWLEY VICKY WEI-CHI LEE CHENZHAO YU DAVID FANG HUI-FANG LIN MICHELLE ZIPERSTEIN ALLAA MAGEID Members GABRIELA ABREU KERENSA GIMRE ERIN MOORE RIDDHI ADHIKARI KELLY GO WALTER MOSTOWY SAFIYA AHMED SARAH GOLD LIU QING NG MIMANSA AMBASTHA ANDREW GORIN YUTA OISHI NISHANT ANURAG KEVIN GU BIHTER OZEDIRNE RTIN U EUNG A A -Y PETER GUTMAN VALINI PANTA EMILY AVAZIAN DEREK HA SORA PARK CHRISTOPHER BARCLAY CATHERINE HARRIS CHULHYUN PARK VERONICA BOGNOT DYLAN HELGESON AYESHA RASHEED ALEXIS CALIGIURI ERIN HILLIARD NOELLE REYES ANNA ESCRIGAS ALLAN HOLDER BRYCE ROSENBOWER CANAMERAS EONGHOON ONG OHN UNKEL LAUREN CARROLL J H J R CLAIRE CHANG FIONA HUANG RYAN JORGENSEN ALEX CHEMERINSKY VICTORIA CONSTANCE ARMBIEN SABILLO HUANG KEVIN CHEN GINETTA SAGAN JONATHAN HUANG TIFFANY CHEN TARINI SAHAI MAISIE IDE YITING CHENG SHREYA SANTHANAM YING JIANG ARI CHIVUKULA JOSH SEDGWICK SAACHI JUNEJA CLAIRE CHRISTENSEN EVAN SEEDER GIA JUNG SCOT CONNER VICKY EL KHOURY JULIEN CROCKETT MARGARETH KANG SFEIR ARPITA DAS CHAITANYA KAUSHIK YAAMINI SHARMA SAMAPIKA DASH JORGE KINA CARMEN SOBCZAK TRENTON DAVIS DANNY KONINGISOR SCHUYLER STANDLEY LIZ DOUGLASS MICHAEL KOSTUKOVSKY LYRIC STEPHENSON IDA EBEID KRISTINA KRASNIKOVA DANIEL TODD RUCHA EKBOTE SOUMYA JOGAIAH VIVIANE TROJAN KRISHNARAJU KATELYN FELICIANO DANIEL TWOMEY EMMA LEE OLGAMARIS EDGAR VEGA FERNANDEZ JIAN LEE YUHAN WANG MORITZ FLECHSENHAR KILLIAN LEFEVRE GRACE WINSCHEL YESENIA FLORES ELLY LEGGATT JOLENE XIE JASON FRANCIS XIAOCAO LI KEVIN YANG LOGAN FREEBORN ASHLEIGH LUSSENDEN ALISON YARDLEY RAVIN GALGOTIA AARTIKA MANIKTALA CLARK ZHANG MARIBEL GARCIA MARISSA MEDANSKY GARIMA GARG JIEYU ZHANG ALEX MILNE PENGPENG
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