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Kendra Albert

  • Why the First Amendment also protects code

    September 14, 2022

    Marketplace – The First Amendment serves as a check on government intervention into our public expression through, for example, spoken or visually signed speech, writing,…

  • Inside the Fight to Save Video Game History

    March 22, 2022

    In February, Nintendo announced it would shut down its 3DS and Wii U storefronts. While the closure is an inevitable part of the life cycle of those long since sunset consoles, the move sparked anger, disappointment, and even fear as fans lamented the loss of access to digitally exclusive 3DS and Wii U titles. With console gaming entering its ninth generation, the digital storefronts from the previous generations are slowly disappearing, taking with them thousands of digital-only games and DLC. Combined with the decline of physical media in favor of subscription services and digital distribution, it’s getting harder for people to play older games and harder still for the games of the present to be preserved for the future. ... Kendra Albert, a clinical instructor at the Harvard Law School Cyber Law Clinic, explains. “Even when the uses that someone is making of a work are fair — for example, a museum taking a copy of a video game and transferring it from a CD to a hard drive — Section 1201 says there’s still legal risk involved in doing that if you need to circumvent digital rights management (DRM) or a technological protection measure in order to do so,” they told The Verge.

  • What’s happening with Massachusetts’s wiretapping laws?

    February 18, 2022

    On Tuesday, the Joint Committee on the Judiciary heard testimony and took questions from lawmakers regarding Gov. Charlie Baker’s recent filing of an act to modernize Massachusetts’s wiretap laws (H.4347). The more than two hour hearing featured both supporters and opponents of the bill. ... Opponents also brought up that the new proposal opens the door for surveillance for any number of crimes that they don’t believe warrant the invasion of privacy. Others, like Harvard Law School professor Kendra Albert, pointed out the plethora of other tools at law enforcement’s disposal for collecting information without a change to the wiretap rules, including access to GPS data from cellphones and the placement of cameras outside a suspect’s home with a warrant. “I understand that law enforcement would prefer to have more tools at their disposal and that there will always be cases where the ability to gather wiretap evidence would seem to have made the difference between a successful prosecution and a defendant that walked or maybe was never charged,” Albert said. “Nonetheless, Massachusetts wiretap laws stand as it is, as it strikes a compromise between a uniquely invasive form of surveillance and the need to gather evidence.”

  • Fla. Appellate Judge Scolds Atty For Misgendering Her

    January 21, 2022

    A Florida appellate judge used her dissenting opinion in a parental rights case to call out a Miami-based attorney for misgendering her twice in a court filing, saying it "does not appear to be a typographical error." ... But Kendra Albert, a technology lawyer and clinical instructor at Harvard Law School's Cyberlaw Clinic who uses plural pronouns, shared a different take on the judge's opinion, saying, "Perhaps next time this judge can try and make her point without what absolutely reads as weird dig at trans people? 'Granted, gendered pronouns are tricky in this day and age...'"

  • Academics want to preserve video games. The game industry is fighting them in court.

    January 12, 2022

    For decades, champions of the video game industry have touted gaming’s cultural impact as the equal of literature, film and music. Traditionally, the classic works from those mediums have been preserved for study by future generations, and amid gaming’s global rise in relevance, a group of video game scholars and advocates is pushing to preserve the game industry’s historic titles and legacy in a similar fashion. In the process, though, the would-be preservationists have found a number of challenges that include, ironically, legal opposition from video game companies and the Entertainment Software Association (ESA), a trade organization that lobbies on behalf of game publishers. ... In hopes of resolving the legal challenges around game preservation, a group led by Kendra Albert, an attorney and instructor at Harvard Law School’s Cyberlaw Clinic, took up that legal fight. Albert has argued to the U.S. Copyright Office that libraries and research institutions should be allowed to provide off-premises access to games for researchers. That request was argued against by the ESA, Motion Picture Association (formerly known as the MPAA) and the Alliance for Recorded Music. After the initial victory for older titles no longer on the market in 2018, expanded access was denied by the Copyright Office in October 2021.

  • Threats of violence to U.S. election officials highlight legal gray area

    September 8, 2021

    A patchwork of state and federal laws can be used to prosecute the people behind a barrage of personal attacks and intimidating messages that are being sent to America’s election administrators. But legal scholars and current and former prosecutors say authorities must walk a fine line between America’s laws against criminal threats and its constitutional protections on political speech. Some prosecutors hesitate to take on such cases, said Kendra Albert, who teaches at Harvard Law School’s Cyberlaw Clinic. “They may see some of these suggestions of violence as political speech,” Albert said. “Courts are going to really heavily scrutinize these prosecutions under the First Amendment.”

  • Should doxing be illegal?

    August 30, 2021

    ... Gersh’s experience is emblematic of a type of harassment called doxing. Slang for doc-dropping, doxing is the process of making someone’s address, contact information, identity, or other information public, usually in order to intimidate, harass, or incite public outrage. ... This approach comes with some advantages, says Kendra Albert, a clinical instructor at the Cyberlaw Clinic at Harvard Law School. You don’t need law enforcement or a prosecutor to buy into the fact you’ve been doxed, and the burden of proving you’ve been doxed is lighter than it would be in criminal court. However, when you’re being doxed by hundreds of people (some of whom may use anonymous accounts), it can be hard to identify just one person to sue. “These laws are based primarily on the idea that you’re suing one individual, which may not be very helpful if what’s happening is a huge mob of people or multiple people are sharing the information,” Albert said.

  • Google Won. So Did Tech.

    April 7, 2021

    On Monday, the Supreme Court said it was kosher to copy someone else’s computer code in some cases. That handed Google a win in a decade-long court battle with Oracle over the guts of the Android smartphone system...In the Google v. Oracle America case, Google said it was standard practice to copy what are called application programming interfaces, or APIs, a set of instructions to make sure that technologies from different companies can work together. Oracle said that Google stole its software and demanded billions of dollars. Each company said it was trying to save the tech industry from ruin...Kendra Albert, a clinical instructor at the Harvard Law School Cyberlaw Clinic, told me that the decision could lead to more legal protections for artists, people who create fan fiction and a group that Albert represents that archives old software such as past editions of Microsoft Excel.

  • Imagining the Post-Trump Internet

    October 7, 2020

    On Monday, Trump declared victory in his battle with the coronavirus. By Tuesday, he had moved on, fighting the invisible enemy he apparently blames for keeping his (false) Covid-19 tweets from the public. “REPEAL SECTION 230!!!” he wrote, meaning Section 230 of the Communications Decency Act, which, in part, defines what kinds of user-generated content websites can host without facing legal liability...But focusing narrowly on 230 misses a significant point: While Trump may have been angered by his misinformation tweet being labeled as such, in truth, when a service like Twitter decides to crack down on content, it goes after those people who are far less powerful...A new bill introduced last week by Senators Joe Manchin and John Cornyn, the See Something, Say Something Online Act of 2020, joins a host of others introduced in the past year—bills with equally unwieldy titles like the PACT Act, EARN IT, and BAD ADS—all concerned with how these platforms are both empowered and protected by Section 230 of the CDA, which has been described as the law that made the internet as we know it possible or the law that made the internet a “free for all.” ... The bill introduced by Manchin and Cornyn this week is part of a pattern now, of anti-230 bills bringing together Republicans who want to go after platforms over bias against them (that doesn’t exist) and Democrats who believe (often correctly) that platforms aren’t doing enough to protect users. “Proposing a bill amending 230 has become the congressional equivalent of mayors painting Black Lives Matter on a street,” said Kendra Albert, clinical instructor at the Cyberlaw Clinic at Harvard Law School. Sometimes, the bills are just an “artificial, cynical” gesture, they told me. But these proposals can also do real damage: by forcing the removal of content that has nothing to do with what was deemed harmful or making it harder to find people who are doing the harm once they are pushed off those platforms. “Passing one of these bills would be worse,” Albert said. “It’s painting Black Lives Matter on the street and then increasing the police budget to hire officers to guard it.”

  • Everything You Need to Know About Section 230

    July 20, 2020

    Section 230 of the Communications Decency Act has become a frequent topic in the news and political debate. In the past few months alone, the “law that created the internet” has faced attacks ranging from President Trump’s Executive Order on Preventing Online Censorship to calls by Sen. Josh Hawley and presumptive Democratic presidential nominee Joe Biden to revoke Section 230. But what does Section 230 actually say? Despite all the debate, there’s a remarkable lack of consistency among the law’s critics about its substance. It often seems that Section 230 means different things to different people for different reasons. To address this issue, I convened a weeklong lunch series of five 90-minute webinars...The fifth and final panel moved from the present to the future of Section 230, asking: What would the world look like without Section 230 in it? To begin the conversation, Kendra Albert, lawyer at Harvard Law School’s Cyberlaw Clinic, and Lorelei Lee, a writer and sex worker advocate, described the effects of SESTA/FOSTA, legislation that endangered Section 230 protections for platforms organizing or hosting advertisements for sex work. Though proponents of SESTA/FOSTA argued it would hold sites liable for potentially advertising for sex trafficking, both Albert and Lee described how the loss of immunity had done little to help solve the problem of sex trafficking and only served to further marginalize an already at-risk community. The writer and activist Cory Doctorow spoke about early reform attempts on the internet, such as copyright, that had resulted in more censorship and harm to minority communities. Rejoining the conversation, Daphne Keller reminded the panel of how changes to Section 230 shape the global conversation—and, in turn, how the U.S. can learn from international bodies. The main struggle of the internet, the panelists discussed, is the tension of allowing people to minimize harms against themselves while maximizing the internet’s positive effects—which Doctorow framed as balancing tools for “self-reliance” against “inter-operability.”

  • Georgia Copyright Loss at High Court Could Jolt Many States

    April 28, 2020

    Georgia lost a close U.S. Supreme Court case over the state’s ability to copyright its annotated legal code, in a ruling heralded by public access advocates over dissent that lamented its disruptive impact on states’ existing business arrangements. Copyright protection doesn’t extend to annotations in the state’s official annotated code, Chief Justice John Roberts wrote for a 5-4 majority on Monday that crossed ideological lines. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined Roberts. The high court clarified the scope of the “government edicts doctrine,” which had previously barred copyright in materials created by judges. The doctrine’s logic also applies to materials created by legislatures, Roberts wrote. Because Georgia’s annotations are authored by an arm of the legislature in the course of its official duties, the doctrine bars copyright here, too...The decision is “great news for those who want to publish, comment on, or build on the law,” added Kendra Albert, clinical instructor at the Harvard Cyberlaw Clinic, which also supported Public Resource in a high court brief, on behalf of Caselaw Access Project. “The Supreme Court’s adoption of a bright line rule that the legislators’ works are uncopyrightable will help ensure that the law is accessible in a variety of formats and mediums.”

  • Kendra Albert

    Kendra Albert ’16 shares their Cyberlaw Clinic story

    February 27, 2020

    Kendra Albert ’16, former student and current clinical instructor in Berkman Klein Center's Cyberlaw Clinic talks about their takeaways from that experience, their current work, and what they’re the proudest of in their time there.

  • The unpredictable legal implications of Trump’s Twitter-blocking defeat

    July 16, 2019

    Earlier this week, a federal appeals court ruled that President Donald Trump couldn’t block his critics on Twitter. More specifically, the court determined that Trump’s Twitter account is a “public forum” where citizens have a right to engage with his comments, the same way they’d be able to attend a town hall. This ruling could shape how all government officials use social media — from the US president to local garbage collectors...Kendra Albert, an instructor at Harvard Law School’s Cyberlaw Clinic, believes the Second Circuit’s decision is unnecessarily ambiguous. The Trump administration has argued that its account is government speech, or speech that the government is performing on its own behalf, which isn’t regulated by the First Amendment. Albert argues that the original ruling clearly separated the account’s “government speech” content from the interactive forum in the replies. “The lower court decision actually does a really good job of explaining why it matters that people are blocked, even if they can just log out of Twitter and see the president’s tweets otherwise,” Albert said, “and it’s because there’s sort of this discursive space going on underneath the tweet.”

  • Proposed law would allow Texas to sue Facebook and Twitter for limiting free speech

    April 29, 2019

    A bill before the Texas Senate seeks to prevent social media platforms like Facebook and Twitter from censoring users based on their viewpoints. Supporters say it would protect the free exchange of ideas, but critics say the bill contradicts a federal law that allows social media platforms to regulate their own content. ...Opponents to the bill raised concerns about the conflict with a federal law that protects social media platforms. In the federal law, social media platforms are protected under a “good Samaritan” policy that allows them to moderate content on the platform however they want, or on a subjective basis. Kendra Albert, a lecturer at Harvard Law School, said the federal law would likely preempt SB 2373 because the bill is more restrictive. “The federal law contains what we would call a ‘subjective standard,’” said Albert, who specializes in technology law. “It's based on whether the provider thinks that this causes problems, whereas the Texas bill attempts to move it to an objective standard.”

  • Texas bill would allow state to sue social media companies like Facebook and Twitter over free speech

    April 23, 2019

    A bill before the Texas Senate seeks to prevent social media platforms like Facebook and Twitter from censoring users based on their viewpoints. Supporters say it would protect the free exchange of ideas but critics say the bill contradicts a federal law that allows social media platforms to regulate their own content. ... Kendra Albert, a lecturer at Harvard Law School, said the federal law would likely preempt SB 2373 because the bill is more restrictive. “The federal law contains what we would call a ‘subjective standard,’” said Albert, who specializes in technology law. “It's based on whether the provider thinks that this causes problems, whereas the Texas bill attempts to move it to an objective standard.”

  • How Strong Is the Government’s Technical Case Against Julian Assange?

    April 12, 2019

    WikiLeaks founder Julian Assange was arrested in London on Thursday, after hiding out in the Ecuadorian Embassy in London since 2012. U.S. authorities now want to charge the man whose website had published hundreds of thousands of classified and sensitive U.S. government documents. U.S. lawmakers have long regarded the large-scale leaks published by WikiLeaks as a threat to national security, but it was not entirely clear what crime they would be able to charge him with—Assange himself, so far as anyone knew, had not stolen any information but instead merely published it. ... That was the extent of Assange’s involvement in anything technical—a single failed attempt to help Manning figure out a password. That could make it difficult to pin a CFAA charge on Assange since there’s no evidence that he ever used a stolen password or cracked it (or even really tried to crack it!) to access a computer without authorization. But a person can be found guilty of conspiring to commit a crime even if they do not actually commit that crime, Harvard Law School lecturer Kendra Albert explained. “A successful conspiracy charge does not require you to actually violate the underlying statue,” Albert told me. “The government doesn’t need to prove that the CFAA was actually violated.”

  • Nunes faces tough odds with Twitter lawsuit

    March 25, 2019

    Rep. Devin Nunes (R-Calif.) faces an uphill battle in his $250 million lawsuit against Twitter and three of its users, legal experts say. ... The tweets from @DevinNunesMom, @DevinCow and Mair cited in the lawsuit could likely be interpreted as opinions or parody, both of which are protected forms of speech, Kendra Albert, a clinical instructional fellow and lecturer on law at Harvard Law School, told The Hill.

  • Why people think their phones are listening to them

    March 12, 2019

    Every day, it seems like people are quitting social media for one reason or another — including fatigue and privacy concerns. Recently, one of my coworkers even told me he had stopped using Instagram because he believed it was listening in on his conversations. ... If tech companies were actually listening in on us without our consent, they'd be in for some serious legal pain. "There is also a federal statute called the Wiretap Act, which prevents people from eavesdropping on oral communications, and that could be a cause of action for a potential plaintiff against the company that was eavesdropping on them," said Kendra Albert, clinical instructional fellow at the Cyberlaw Clinic at Harvard Law School.

  • Why I Changed My Mind 4

    Why I Changed My Mind

    March 8, 2019

    A panel discussion at HLS brought together four faculty members to share their moments of reckoning, when they had to re-examine some of their most closely held ideas.

  • Copyright Law Just Got Better for Video Game History

    October 26, 2018

    A new ruling from the Librarian of Congress is good news for video game preservation. In an 85-page ruling that covered everything from electronic aircraft controls to farm equipment diagnostic software, the Librarian of Congress carved out fair use exemptions to the Digital Millennium Copyright Act (DMCA) for video games and software in general..."These rules are a big win," Kendra Albert, a Clinical Instructional Fellow at the Cyberlaw Clinic at Harvard Law School, told Motherboard. Albert represented the Software Preservation Network, which was one of the parties arguing for the change at the Copyright Office. "The 2015 rules cracked the door open for many things, but the exemptions that were granted here are potentially much, much broader."

  • City attorney sues blogger for libel. Is it ‘a threat designed to silence?’

    September 17, 2018

    Local politics blogger Kevin Vericker is better known for putting an occasional toe — OK, foot — over the line than for pulling punches. Wielding hyperbole in the rabid manner endemic to the blogosphere, the retired software analyst relentlessly details the palace intrigue of tiny North Bay Village for his 1,000 local readers...The suit is part of a growing trend of public officials taking bloggers to court for posts they see as harmful to their personal or professional image, according to Kendra Albert of Harvard Law School’s Cyberlaw Clinic. Melania Trump filed a high-profile libel suit against a Maryland blogger that settled last year in her favor, with a full retraction and significant reparations. While some cases are legitimate, Albert said, the increase in lawsuits against journalists (think Hulk Hogan vs. Gawker) has publications thinking twice before publishing. These days, even facts can be expensive to defend.