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Daphne Keller to Direct Intermediary Liability Project at Stanford’s Center for Internet and Society

This announcement comes from Stanford’s Center for Internet and Society.

Stanford Law School today announced the appointment of Daphne Keller as Director of Intermediary Liability at The Center for Internet and Society (CIS). Starting in September 2015, Keller will lead the Center’s work at the intersection of online technologies, liability and corporate responsibility, and civil liberties, with a particular focus on global liability regimes that impact free expression and innovation.

Daphne Keller

Daphne Keller

CIS’ two-year-old initiative on intermediary liability explores the impact of global intermediary liability regimes on freedom of expression and innovation. Intermediary liability law can create incentives for platforms like Facebook or YouTube to police the online expression and conduct of their users – including artists, journalists and political activists. Without careful consideration, the rules can stifle legitimate expression and political activities, and can constrain providers’ ability to provide innovative new services.

The Director of Intermediary Liability is responsible for conducting and supervising policy analysis and advocacy efforts regarding intermediary liability regimes and their effect on free expression and innovation worldwide, and for managing and developing the Center’s innovative and influential work in this focus area.

Keller is a renowned expert in intermediary liability, privacy and copyright law. As Associate General Counsel for Intermediary Liability and Free Speech issues at Google, Keller has been on the front lines of the intermediary liability issue – including resolving legal content removal requests – for 10 years. Keller’s experience is global, working primarily on legal and policy issues outside the U.S., including the European Union’s evolving “Right to Be Forgotten.” Daphne has also taught Internet law as a Lecturer at U.C. Berkeley School of Law and has taught courses at U.C. Berkeley School of Information and at Duke University School of Law.

“International Intermediary liability regimes are developing quickly and impacting user rights online,” said CIS Faculty Director and Professor of Law Barbara van Schewick. “We believe that governments can address unwanted behavior on the Internet in ways that preserve civil liberties. I’m delighted that Daphne Keller has agreed to lead our efforts in this area. With her expertise and her enthusiasm for user rights, I can’t think of a better person to help us figure out what the role of intermediaries in an open and free society should be.”

“I am excited to shift into a more public interest-oriented advocacy and research role, addressing the same fascinating topics I navigated at Google through a new lens and with new tools,” said Daphne Keller. “I am also eager to use my expertise to help educate students and to find new, civil liberties-enhancing solutions to thorny problems.”

“We are thrilled to have Daphne Keller at the Center for Internet and Society,” said M. Elizabeth Magill, the Richard E. Lang Professor of Law and Dean of Stanford Law School. “The Center for Internet and Society has led the way in navigating unchartered waters where new technology meets the law, and Daphne expands the Center’s capacity to work with students, lawyers and policy makers.”

As Associate General Counsel for Intermediary Liability and Free Expression at Google, Keller focused primarily on legal and policy issues outside the U.S. Prior to that role, her roles at Google included leading the core legal teams for web search, copyright and open source software. Throughout her career, Keller has maintained strong ties to academia, teaching courses on Internet intermediaries, cyber law and intellectual property, the First Amendment and emerging technologies. Before joining Google in 2004, Keller practiced in the Litigation group at Munger, Tolles & Olson.

Keller earned her law degree from Yale Law School and her undergraduate degree from Brown University. She has been a panelist, speaker and educator at numerous policy and professional events, including the U.K. Parliament Joint Committee on Privacy and Injunctions and Leveson Inquiry regarding intermediary liability issues for web search and other Google services in 2012, where she served as a witness; the Fordham IP Law and Policy Conference; the Stanford E-Commerce Best Practices Conference; and the USC School of Law Intellectual Property Institute.

About the Center for Internet and Society

Led by faculty director Barbara van Schewick, The Center for Internet and Society (CIS) is a public interest technology law and policy program at Stanford Law School that supports the study of the interaction of new technologies and the law and is a part of the Law, Science and Technology Program at Stanford Law School. CIS strives to improve both technology and law, encouraging decision makers to design both as a means to further democratic values. Along with conducting research and policy analysis, the Center sponsors legal fellowships, organizes events to foster discussion of critical policy issues, and provides educational opportunities for law students to conduct applicable research and policy analysis in this field.

About Stanford Law School

Stanford Law School (www.law.stanford.edu) is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.

 

 

Alex Kasner, JD ’15, Honored With Scribes Award for Best Law Review Student Note

The United States’ long and complicated history with government leaks, as explained by Alex Kasner, JD ’15, in the Stanford Law Review note, “National Security Leaks and Constitutional Duty,” took center stage at the most recent National Conference of Law Reviews.

During the event’s Scribes Law Review Dinner on March 12, 2015, Kasner was honored with the 29th annual Scribes Law-Review Award for his piece, which presents one of the first concentrated studies of the Constitution’s Article VI Oath Clause and the obligation it places on executive officers to resist unconstitutional government behavior.

Alex Kasner, JD '15, receiving the 29th annual Scribes Law-Review Award.

Alex Kasner, JD ’15, receiving the 29th annual Scribes Law-Review Award.

The award is annually presented to the best student-written law review note published in the preceding year. Kasner’s submission was chosen out of fifty-two entries submitted; he is the first Stanford Law School student to ever receive the award.

“I was obviously quite honored to hear that I had been selected for the Scribes Award,” Kasner said. “Looking at the history of past winners and reading some of their pieces, I was struck by the creativity of their topics and the careful and considered approaches they took to their legal analysis and writing.”

Scribes Law-Review Award Committee members called Kasner’s note “a provocative thesis” dealing with timely and interesting issues important to the United States right now.

“I was impressed by the way the note explored legal scholarship, case law, and the Constitution’s text, drawing on all of it but staking out a position all its own,” said Mary Bowman, JD ’98, Chair of Scribes’ Law-Review Award Committee. “And in doing so, the prose was ‘clear, succinct, and forceful,’ which is what Scribes promotes.”

For Kasner, writing the piece provided him with an opportunity to focus on his interest of the intersection between national security and structural constitutional law.IMG_0047 (1)

“The question of who decides which bundle of rights we possess as a people in the midst of state security concerns is just as important as the rights that we decide are worth protection,” Kasner said. “That decision seems to have fallen to the executive branch itself, which is now, as a descriptive matter, largely responsible for drafting, enforcing, and adjudicating national security policy. And yet the leaks of former executive employees like Edward Snowden and the resulting national debates over surveillance demonstrate that the opaque executive may not be infallible in its constitutional determinations. Rather, these are larger debates often worth having as a nation on the whole.”

Kasner says he hopes the piece will help readers understand the complex history the United States has had with leaks and whistleblowers as well as answer larger questions surrounding constitutional interpretation and separation of powers in the national security state. “The very best thing you can do as a writer is inspire another author to pick up the baton and explore a kernel of your piece in more depth,” Kasner said.

 

 

Stanford Law’s Paul Goldstein Named to 2015 IP Hall of Fame

Stanford Law Professor Paul Goldstein, a globally recognized expert on intellectual property (IP) law, has been inducted into the 2015 IP Hall of Fame, where he joins Stanford Law Professor Mark Lemley and 66 other individuals chosen since 2006 from nominations made by members of the IP community around the world.

Paul Goldstein

Paul Goldstein is the second Stanford Law School professor to be named to the IP Hall of Fame. Photo by Lizzy Goldstein.

Goldstein, the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School, is one of five new inductees who will be honored at a gala dinner held in San Francisco this June during the IP Business Congress. He is in good company in the IP Hall of Fame Academy, which includes such notables as Thomas Jefferson, Victor Hugo, Edward Coke and, in this year’s group, Nikola Tesla.

Only three inductees teach at American law schools: Goldstein, Lemley and Jane Ginsburg of Columbia University School of Law.

“This is a great honor, indeed. I have known several of the inductees for many years and have long been familiar with the contributions of virtually all of the others. I couldn’t hope to be in better company,” Goldstein said.

“Paul Goldstein is a giant in the field of intellectual property. Stanford has a well-deserved international reputation in this field, and Paul is a major reason for that. More than that, as I have learned from our graduates, many of them came to Stanford because of Paul, and others were converted to the field after taking his classes. This is wonderful recognition,” said M. Elizabeth Magill, dean and the Richard E. Lang Professor of Law at Stanford Law School.

“Paul has been one of the most important figures in copyright law for a generation. His work has defined the meaning and limits of copyright law,” said Mark Lemley, the William H. Neukom Professor of Law at Stanford Law School and director of the Stanford Program in Law, Science and Technology.

In announcing Goldstein’s selection, Intellectual Asset Management, a bimonthly magazine, cited his accomplishments as a leading U.S. copyright scholar, lawyer and author. In addition to writing an influential four-volume treatise on U.S. copyright law, a one-volume treatise on international copyright law and other titles on IP issues, he has authored three novels with IP themes. His most recent novel, Havana Requiem, won the 2013 Harper Lee Prize for Legal Fiction.

Goldstein currently serves as of counsel at Morrison & Foerster and has been regularly included in Best Lawyers of America. He has been on the Stanford Law School faculty since 1975, where he has been recognized twice with the John Bingham Hurlbut Award for Excellence in Teaching. He has served as chairman of the U.S. Office of Technology Assessment Advisory Panel on Intellectual Property Rights in an Age of Electronics and Information; has been a visiting scholar at the Max Planck Institute for Foreign and International Parent, Copyright and Competition Law in Munich, Germany; and was a founding member of the Munich Intellectual Property Law Center.

Established in 2006 by Intellectual Asset Management, the IP Hall of Fame honors those who have helped to establish intellectual property as one of the key business assets of the 21st century. It aims to acknowledge the vital role these innovators have played in fostering today’s vibrant IP environment and ensuring its continued health, as well as to show how central IP is to the global economy and the well-being of people around the world. The full list of previous inductees can be found here.

Rock Center Offers Board Membership Bootcamp for Minorities and Women

This report was written by Emily Hite.

On March 5 Stanford’s Rock Center for Corporate Governance and the venture capital firm Andreessen Horowitz co-hosted a new program that invited some of Silicon Valley’s top talent to Stanford Law School to prepare and educate more women and minority candidates for venture-backed board service.

Participant asks question

Tristan Walker, CEO and co-founder of Walker & Co., asks a question during “A Guide to VC-Backed Board Membership.” Photo by Misha Bruk.

Participants at “A Guide to VC-Backed Board Membership” gathered inside Paul Brest Hall to learn the nuts and bolts of corporate governance from senior faculty of Stanford Law School, network with peers and participate in frank discussions with key players in Silicon Valley about what really goes on in boardrooms. They were invited to attend the second annual Stanford Directors’ College for Venture-Backed Company Directors the next day for further education on board membership.

Closing the diversity gap

The lack of diversity in corporate and venture-backed company leadership in the region has received increasing attention recently. Across U.S. stock index companies, the majority of board members are white and male, disproportionate to the populations they serve, despite longstanding statements of intent to recruit more women and minorities.

Diversity is further inhibited if CEOs and board members subconsciously select candidates like themselves when filling open seats. As recent research by Stanford’s Deborah Rhode, the Ernest W. McFarland Professor of Law, and Amanda Packel, deputy director of the Rock Center, explains, the pattern of “in-group” bias, showing preference for people similar to you in terms such as race, ethnicity and gender, “is particularly likely in contexts where selection criteria are highly subjective, as is often true in board appointments.”

In their Delaware Journal of Corporate Law article, Rhode and Packel write that although the empirical evidence on the link between board diversity and financial performance is inconclusive, diversity on boards can improve decision making and monitoring, reduce the tendency toward groupthink and enhance corporate reputation by signaling commitments to equal opportunity and inclusion.

So, how can companies bring more diversity to their boards? “I would say just being more open – talking to all sorts of different people – will probably progress things quite a bit,” said Miriam Warren, vice president of new markets at Yelp. Warren was one of 40 attendees at the March 5 event.

“Yelp is quite a diverse place – we have a number of women at the executive level,” Warren said. “But as you go into the larger tech scene in Silicon Valley and San Francisco, there are fewer and fewer women and fewer and fewer people of color. And it starts to look like everyone came from the same club.”

Corporate governance basics

The day opened with an introduction to principles of corporate governance. Led by Evan Epstein, executive director of the Rock Center, the session covered dual-class share structures and other issues relevant to publicly traded and venture-backed company boards.

Robert Daines, the Pritzker Professor of Law and Business, delivered a primer on legal and fiduciary duties of directors. He noted the difficulty of telling “good” from “bad” corporate governance and walked participants through case studies illustrating the primary fiduciary duties of loyalty and care.

In a session on best practices for boards, Joseph A. Grundfest, the W. A. Franke Professor of Law and Business and founder of Directors’ College, and Nicki Locker, partner at Wilson Sonsini Goodrich & Rosati LLP, explored practical advice for directors to stay out of trouble while getting necessary business done. Grundfest acknowledged that conflicts of interest in the boardroom are inevitable. However, he said, “A conflict is not a problem unless it’s badly managed.”

Presenters at VCDC boot camp

Nicki Locker, partner at Wilson Sonsini Goodrich & Rosati LLP, and Stanford Law Professor Joseph A. Grundfest discuss best practices for boards. Photo by Misha Bruk.

Marc Andreessen, co-founder and general partner of Andreessen Horowitz, and Diane Greene, co-founder and former CEO of VMware and current board member at Google and Intuit, discussed practical, problem-solving considerations for boards. Their conversation included strategies to resolve management problems – employing an effective, impartial coach, for example – and how to handle a crisis, such as a C-level coup. They covered various roles board members might play and when, if ever, directors should offer their expertise to operating executives outside of the formal CEO-board relationship.

The value of board members

While not overseeing the day-to-day processes of a company, board members do make essential contributions to the organizations they serve, as many panelists and participants at the event mentioned.

Varsha Rao, head of global operations at Airbnb, said of her motivation to attend, “I wanted to come and learn more about how to be a great contributor.” Previously, Rao was a founder of a cosmetics startup, Eve.com. “We had a great board,” she said. “They were really instrumental in helping us navigate, especially since it was my first startup, and so I definitely would love to be able to provide a similar kind of guidance that I got earlier on in my career.”

Louis Jordan, most recently SVP of corporate finance at Starbucks and previously CFO of Nike’s global retail and digital commerce business, serves on two not-for-profit boards in the education space. He noted, as the first in his family to graduate from college, that “education was my path to success” and the natural way for him to give back. He came to Stanford to better understand how corporate board responsibilities compare to those of not-for-profits, with the goal of eventually sitting on one or more public boards. Contributing his extensive financial and business professional experience through public board service would mean “basically the beginning of [adding] more voice to the diverse community that I’m part of,” he said.

Other sessions detailed the process of raising money and the board’s role in the financing process, mergers and acquisitions involving venture-backed companies, the CEO’s perspective on board functions, and indemnification and directors and officers liability insurance.

Reflecting on the program’s content, Rao said she found useful “understanding why other people have chosen to take on board roles and what it takes to be a good board member.” Jordan found “more clarity as to what the role [of a board member] could be.”

Commenting on the day’s focus on diversity, Warren said, “I think diversity can take a lot of different forms, and it’s nice to see several of those forms exhibited in this room.” She observed, “I haven’t been in a room in Silicon Valley that’s this diverse, maybe ever, and it’s really quite a nice feeling to not feel alone.”

Emily Hite is the content and communications manager for the Rock Center for Corporate Governance and the Steyer-Taylor Center for Energy Policy and Finance.

Student Researchers in Stanford Law School Practicum Recommend Smarter Ways to Manage Water

This story was written by Rob Jordan and was published March 19 on the Stanford University website as part of a series about Stanford researchers developing solutions to water supply and access challenges affecting billions of people.

Underwater viw of Salmon River in Idaho

Underwater view of Salmon River in Idaho

Carving its way through the Grand Canyon, the mighty Colorado River has long been a symbol of the American West’s unbounded wilderness. In reality, the river is heavily engineered, managed and used. It peters out before reaching its delta. In most years, users’ water rights, the amount they are entitled to by law, actually outstrip the amount of water available.

“That catastrophe replays itself on a smaller scale all across the West,” said Leon Szeptycki, who taught a practicum on stream flow restoration last year at Stanford Law School. “It was built into the legal system that if water flows downstream and you lose control of it, it’s a waste of water.” In addition to being affiliated with the law school, Szeptycki is executive director of Stanford’s Water in the West Program, a joint program of the Stanford Woods Institute for the Environment and the Bill Lane Center for the American West.

The use-it-or-lose-it ethos is compounded by growing populations, a changing climate and widespread drought. Among the biggest losers: fish and ecosystems dependent on stream and river flows. Current safeguards, such as the federal Endangered Species Act, mandate reductions in water diversions for human use, causing intense social and legal conflict between water users and federal regulators.

As part of the Stanford Law School practicum that Szeptycki taught in partnership with the National Fish and Wildlife Foundation (NFWF), student researchers set out to determine how Western states can increase reserves of environmental water and allocate it to the highest priority ecosystems in dry times, while empowering water users to earn money. They analyzed laws and interviewed state agency officials to draft a report, due out later this spring. The paper synthesizes best practices into recommendations for increasing the number of water rights transfers to maintain healthy flows for ecosystems. The report is part of a larger effort by NFWF to identify barriers and opportunities for environmental water transactions in Western states.

A Dry History

As Americans settled the West, the principles of private rights to land and mining were applied to water. The system, codified by state statutes and judicial decisions, ensured that those who came first would always have their water rights satisfied, and that water would be seen first and foremost as a resource to exploit. “The Western water system is based on the principle that the most senior water rights should be satisfied before junior users get a drop,” said Szeptycki, professor of the practice with the Stanford Woods Institute. This system can clog the process of any kind of water transfer, selling rights to water, whether to protect the environment or bring water to thirsty cities.

By the 1960s, however, states began realizing that their water allocation systems were badly damaging ecosystems, wildlife and recreation. People started coming around to the idea that water left in streams had value, too. Laws to protect stream flows followed. Eventually, states created legal tools to allow irrigators and other water users to transfer their rights for environmental and recreational uses, putting that water off-limits to other users.

System in Need of a Fix

Such deals often prove expensive and time-consuming because of the administrative processes required to review and approve them.

Short of completely overhauling water law – politically and legally unlikely – how can water regulators and users operate more effectively? Part of the answer can be found in Oregon.

Since the late 1980s, Western states have had wildly different experiences with environmental water rights transfers. Oregon, for example, approved about 2,000 transfers (1,700 of which were short-term deals), while Arizona approved none in that time. Perhaps unsurprisingly, states such as Oregon that have relatively easy procedures for short-term deals such as single-season forbearance agreements – deals that restrict a rights holder from withdrawing water for a season – end up having a lot of them.

In California and Colorado, rights transfers of five years or fewer are subject to the same review process as permanent transfers, with an average turn-around period of 480 days. The states’ expedited review processes for transfers of a year or less aren’t much better, taking more than four months on average. By comparison, Oregon strives to approve any rights transfer deal of fewer than five years in only 45 days.

Unlike permanent water rights transfers, short-term transfers are more likely to appeal to irrigators unwilling to give up control for the foreseeable future. These deals require less cost, scrutiny and data for approval. They allow state agencies and conservation groups to allocate water where it is needed in the short term, while avoiding the potential of paying to protect an ecosystem that becomes irrelevant as a conservation objective over time. Short-term transfers allow irrigators to decide whether to grow a small amount of crops in a drought year, or to sell their rights and make money that way.

Toward Solutions

Among the report’s preliminary findings:

  • Informal transactions, such as forbearance agreements, provide a great deal of flexibility without the burden of state review
  • The process for quantifying the amount of water that can be transferred to environmental uses is a major barrier to achieving deals. Some states require many years of data.

Elizabeth Hook, a Stanford Law School (JD ’15) who worked on the project, summarized the findings in one sentence: “Just provide the largest toolkit for deal-making that you can, with clarity and streamlining of administration at all levels.”

“No state is the same,” said Kori Lorick, another law student (JD ’15) who contributed research. “Each state has different stakeholders and different priorities – what works for one may not work for another.”

Specifically, the report suggests states institute five promising legal tools:

  • A framework of statutes, regulations and policies tailored to a broad variety of transaction types
  • Streamlined, clear rules for short-term water leases
  • Policies clarifying that informal, short-term water forbearance agreements are protected and cannot be abandoned or result in the permanent loss of water rights
  • More streamlined tools for measuring water use
  • Permanent institutions, such as water banks, that can facilitate and manage short-term transfers of water rights for environmental purposes
  • “These recommendations form a potential building block for water scarcity solutions across the West,” Szeptycki said.

Support for the Water in the West research was provided by the National Fish and Wildlife Foundation. The full report is due out later this spring.

This article was written by Rob Jordan of the Stanford Woods Institute for the Environment.