Details

Autor(en) / Beteiligte

• Perel, Maayan

Titel

DIGITAL REMEDIES

Ist Teil von

• Berkeley technology law journal, 2020-01, Vol.35 (1), p.1

Ort / Verlag

Berkeley: University of California, Boalt Hall School of Law

Erscheinungsjahr

2020

Link zum Volltext

Quelle

EBSCOhost Business Source Ultimate

Beschreibungen/Notizen

• Legal disputes increasingly arise on digital grounds in relation to an array of subjects such as online enforcement of intellectual property, the First Amendment and online speech, and the right to privacy in personal data stored on digital devices. When courts are called upon to resolve disputes relating to cyberspace, many of the reliefs they grant are executed by digital means, such as technologies that restrict access to unwarranted content or technical solutions that enable or disable access to digital devices. The essence of digital remedies is their profound technological details, some of which may elude judicial review. Like equitable remedies directed to the physical world, digital remedies are usually open-ended, affording their executors broad discretion on how to implement them. However, unlike physical remedies, the implementation of digital remedies is embedded in inherently non-transparent technologies designed and executed privately outside the courthouse and has a robust, dynamic, and ongoing impact on third-party stakeholders. Digital remedies' technical details may far surpass what the court defines, converting compliance from a technical matter of law enforcement into a substantial matter of law making. Although equitable remedies generally create greater difficulties for courts in ascertaining and ensuring compliance, digital remedies take these concerns to the next level, presenting serious challenges to the rule of law. This Article argues that the issuance and execution of digital remedies challenges the court's ability to fulfill its longstanding duty to exercise its adjudication power in accordance with rule of law, to competently prescribe remedies that are fit to redress the violation of rights, and to assure these remedies are enforced properly. Using the example of website-blocking injunctions, this Article demonstrates that the devil is in the details of implementing digital remedies. These details play a crucial role in shaping the meaning of digital remedies, and consequently the definition of the rights they purport to vindicate. Overall, the Article recommends several mechanisms that courts can exploit in order to extend their oversight and retain more control over the critical implementation stage of digital remedies. This Article builds on the system of equitable remedies, which includes, in addition to the remedy itself, equitable managerial devices that allow courts to manage the parties and ensure compliance, as well as special equitable restraints. This Article aims to empower judges who resolve cyber-related disputes with a broader and a more accurate understanding of the meaning of their digital solutions.