Academia and digital rights litigation: from observation to collaboration

By Ot van Daalen, 17th July 2019

“I expect to be in observation mode,” was what I wrote when I was asked to participate in DFF’s workshop on connecting the digital rights field with academia. Not because I didn’t want to contribute, but because the Glushko & Samuelson Information Law and Policy Lab (ILP Lab) of the Institute for Information Law (IViR) at the University of Amsterdam was founded only a few months ago. Stef van Gompel and I, the co-directors, are in the process of finetuning the topics that the ILP Lab focuses on, how we work with students, and how we manage projects. For this, the workshop couldn’t have come at a better moment. Let me share three take-aways from the workshop that we hope will develop our thinking in these areas and open up opportunities for us to engage with the digital rights field in the context of their work.

The ILP Lab develops and promotes research-based policy solutions that protect fundamental rights and freedoms in the field of European information law. It is a student-run, IViR-led institution, which aims to convert insights from academic research into practical policy solutions that are then shared more widely. In carrying out this work, it provides students with hands-on training under the supervision of experienced academics.

The ILP Lab works on selected projects at the initiative and in close consultation with selected partners with a public interest mission, such as non-governmental organisations, policy think-tanks, public authorities, government agencies, and local and (inter)national governments. Students work closely with their peers and members of staff at the University of Amsterdam. Under the supervision of staff members, students will, depending on the project, draft position papers, public briefings, legislative proposals, responses to consultations, policy impact assessments and amicus briefs.

In relation to amicus briefs, I wasn’t yet convinced the ILP Lab could provide added value in this area. The precedential value of court decisions in civil law countries is more limited than in common law jurisdictions and it is difficult to assess to what extent amicus briefs have an impact in the decision-making process of European courts. More importantly, I wasn’t sure whether drafting an amicus brief was something that students would be able to finish in a semester.

The workshop changed my view. While the impact of amicus briefs is difficult to assess, this does not mean that they cannot influence the outcome of a case. Civil law courts do indeed attach less value to precedent, but it is obvious that regional courts in Europe can have a major impact on policymaking (see Digital Rights Ireland and Schrems as two examples). What was abundantly clear is that writing an amicus brief is doable in one semester – in fact, it could provide for a nice, well-rounded project for this timeframe.

The second take-away had to do with working with students. I learned that, in the US, universities have appointed clinical professors who are fully dedicated to supporting the clinical students. These professors determine the projects the clinic will work on, and, more importantly, they co-ordinate and mentor students quite intensively. This also has to do with the fact that clinical professors are simultaneously practicing lawyers, and all the work produced by the clinical students is done in the name of the professor – so the bar license of the professor is on the line. This means, for example, that all outgoing communication of the students is approved by the clinical professor. I’m not entirely sure the ILP Lab could provide this level of support, but for me it underlined that we should further clarify our policy on this point.   

Lastly, I learned that we’re on the right track. Practice-based learning can be immensely valuable for students, as decades of US experience with the clinical model demonstrates. Simultaneously, initiatives like the ILP Lab can serve to bridge the gap between academia and civil society, and the projects our students have been working on for the past few months have been a testament to this.

We are very grateful to the Digital Freedom Fund, the Amsterdam Legal Practice of the University of Amsterdam and the Cyberlaw Clinic at the Berkman Klein Center of Harvard University for organising the workshop. For the ILP Lab, the workshop laid the groundwork to shift from observation to collaboration mode, something we very much look forward to!    

About the author: Ot van Daalen is the co-director of the Samuelson & Glushko InformationLaw and Policy Lab of the Institute for Information Law. He is also the founder of privacy law firm Root Legal.

Promoting international collaboration among digital rights scholars, teachers, advocates, and activists

By Christopher Bavitz, 9th July 2019

Introduction

I had the great pleasure of participating in a workshop last week — “Connecting the Digital Rights Field with Academia: Exploring Models for Collaboration” — organised by the Digital Freedom Fund and hosted at Amsterdam Law School. I played a tiny role in helping to shape the event, but all credit goes to the extraordinary DFF team for bringing everyone together and making sure we stayed on track.

This was one of those workshops that just (for lack of a better word…) worked. The participants were enthusiastic; the agenda struck the right balance between fluid and focused; and the overall tone was one of collaboration and collegiality. I know I am not the only attendee who came away having learned a lot and feeling energized about future opportunities.

I am happy that DFF asked if I might share a few words about the workshop, and I thought I would focus in part on some substantive themes that characterised the discussions and in part on some more practical or process points that made the convening such a success.

Background

DFF provides funding and other institutional support for strategic litigation in Europe relating to digital rights. In doing so, it works with European NGOs and supports their efforts to tackle complex law and policy problems on issues ranging from privacy and surveillance, to online speech, to algorithmic fairness and accountability. These issues are also the domain of scholars throughout Europe, whose research might inform (and be informed by) the work of litigators and activists. In conceiving of last week’s workshop, DFF sought to ensure that academics and activists had the opportunity to compare notes, build networks, and identify points of connection and potential collaboration.

I am not an European academic, nor do I work for an NGO focused on digital rights in Europe. (Cue Admiral James Stockdale, “Who am I? Why am I here?”)

I am a US-based lawyer and law teacher, with a background in copyright, tech, and issues relating to free expression. I am on the faculty of a US law school. And, I work with an amazing team of fellow law-teachers-cum-practitioners, along with a rotating cohort of extraordinary law students, in a law school clinical program that focuses its docket on technology law and policy. The Cyberlaw Clinic at Harvard Law School was founded twenty years ago at the Berkman Center for Internet & Society (now the Berkman Klein Center for Internet & Society). Over the last two decades, the Clinic has offered pro bono legal services to a wide range of clients and collaborators, with students on the front lines providing legal support (under the supervision of attorneys) and learning the day-to-day skills required of tech lawyers.

The Cyberlaw Clinic is one node in a larger network of US-based technology law clinics, each with its own substantive focus, but all dedicated to considering issues such as free expression, privacy, open government, freedom of information, transparency, intellectual property, and — broadly — the impacts of technology and the use and development of digital tech in ways that promote social justice and the public interest.*

The Cyberlaw Clinic — like many of these other clinics — regularly collaborates with scholars from a wide variety of disciplines and with advocacy groups pursuing agendas around promotion of technology development and tech policy in the public interest. A clinic like ours might write an amicus curiae brief with a group of scholars and file the brief on the scholars’ behalf in a case with far-reaching implications for intellectual property law, innovation, and access to information; prepare comments on behalf of an NGO about a pending policy proposal and submit those comments to an administrative agency or other governmental institution; or conduct foundational legal research to inform an advocacy group’s legislative or litigation agenda.

In this sense, a technology law clinic like the Cyberlaw Clinic can serve capacity-building and capacity-expanding functions for academics and NGOs, all while dedicating itself to its twin mission of legal service to advance the public interest and education and training for enrolled law students. Of course, these collaborations are two-way streets — technology law and policy clinics are heavily informed by the work of scholars and advocacy organisations as clinics work with students to set their programs’ pro bono practice priorities.

This explains my presence (and the presence of tech clinic friends and colleagues from NYU and Berkeley) at DFF’s workshop. Specifically, I felt that we were there to do three things:

  • identify areas in which US-based technology law and policy clinics might support European scholars and NGOs in their work;
  • learn about modes of engagement and points of potential influence in European tech policy conversations, where clinics might have an impact (analogous to the modes we regularly employ in our US-based teaching and practice activities); and
  • offer thoughts to the European digital rights community about the US tech clinical model and how it might be replicated, adjusted, or expanded upon in European law schools (where clinical teaching is less likely than in the US to be a core component of the law school curriculum).

Takeaways: Substance

I learned an enormous amount on all three scores. Of particular note:

  • We identified a number of key substantive issue areas that are subjects of significant attention in both the US and Europe, as to which international collaborations and/or efforts to perform comparative legal analyses might advance clinics’, NGOs’, and scholars’ missions throughout the world. Two of the largest buckets of issues seemed to be (perhaps unsurprisingly): (a) privacy and data protection; and (b) the use of algorithms, development and adoption of machine learning tools, and the move toward widescale implementation of artificial intelligence technologies. As to the former, participants shared a considerable interest in tracking the impacts of GDPR — as an active construct in the EU and as potential inspiration for legislative reform in the United States. Significant attention will be devoted in the coming years to the landscape for GDPR-related litigation, as the protections afforded by this new and developing regime are defined and refined. As to the latter, participants shared concerns about the unfettered adoption of autonomous, opaque technologies — particularly by government actors — and identified a number of points of potential cross-border comparison and collaboration.
  • The group spent a lot of time talking about modes of intervention in the development of national and transnational tech policy in Europe. Some of the most productive conversations involved mapping typical outputs for US tech clinics against the kinds of interventions that European NGOs and scholars might pursue in advancing a tech policy agenda or ensuring that research supports the development of robust and evidence-based legal regimes. I was particularly interested to learn about opportunities in the EU for engagement with Data Protection Authorities, which are without a clear analogue in the US.
  • We had very robust conversations about the American law school clinical model, particularly as it has been adopted and applied in the arenas of technology and civil liberties at law schools throughout the United States. We talked about challenges we face in the US, employing this model in support of a tech law and policy docket, and about the institutional differences between European and US law schools that make it difficult to simply port the model over to Europe. But, we also spent a lot of time identifying opportunities and learning about the efforts of a number of scholars in Europe to engage students in real-world law and policy advocacy projects.

Takeaways: Process

I have been affiliated with the Berkman Klein Center at Harvard for nearly eleven years, and — in various roles there — have hosted and participated in my share of workshops, conferences, skillshares, symposia, and strategy sessions. I can attest that one does not go through the effort required to bring people together in hopes that participants walk away thinking merely that the event was well-managed and well-run. The primary goal is always the substance — fostering dialogue, promoting collaboration, advancing a cause. Indeed, the best events are often those where operational elements fade into the background.

That said, I can’t help but offer a few brief observations about the practical elements that made this workshop such a great success: it was small (fewer than twenty participants); it was well-scoped (with significant thought given to the order of operations, the flow of larger and smaller breakout sessions, and the establishment of interim goals); it was hosted in a location that was conducive to both large group discussion and small breakouts (i.e., the University of Amsterdam’s “Amsterdam Law Hub” which was clearly designed with group projects in mind); and it was expertly facilitated (with Allen “Gunner” Gunn of Aspiration Tech guiding participants through a series of breakout sessions, ensuring we captured the fruits of each round of discussion, and striving to have conversations build upon conversations toward the group’s ultimate goals). A lot of thought and advanced planning went into ensuring we were well-positioned to hit the ground running for our two days together in Amsterdam, and that preparation surely paid off.

Conclusion

Our students in the Cyberlaw Clinic respond with great enthusiasm whenever our docket includes international projects, and we actively seek out opportunities to lend our expertise to projects with a global dimension and take advantage of opportunities to learn from partners throughout the world. Last week’s event was a great first step toward establishment of a network that will ensure we continue to have the opportunity to share knowledge across borders for years to come.

About the author: Christopher Bavitz is the WilmerHale Clinical Professor of Law at Harvard Law School. He is Managing Director of HLS’s Cyberlaw Clinic, based at the Berkman Klein Center for Internet & Society, and a Faculty Co-Director of the Berkman Klein Center.

* For a whirlwind tour of the US tech clinic scene, one might take a look at — by way of example only, and with apologies for any oversights! — the Federal Legislation Clinic at Georgetown; the New Media Rights program at California Western School of Law in San Diego; the Technology Law & Policy Clinic at NYU School of Law; the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado; the Cornell Law School First Amendment Clinic; the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law; the Media Freedom & Information Access Clinic at Yale Law School; the Technology Law and Public Policy Clinic at University of Washington School of Law; Penn Law’s Detkin Intellectual Property & Technology Legal Clinic; the First Amendment Clinic at Vanderbilt Law School; the Intellectual Property & Technology Law Clinic at University of Southern California Gould School of Law; University at Buffalo Law’s Civil Liberties & Transparency Clinic; the Boston University School of Law Technology Law Clinic; the Brooklyn Law Incubator and Policy Clinic; the Intellectual Property and Information Policy Clinic at Georgetown Law; the Communications & Technology Law Clinic at the Georgetown Law Institute of Public Representation; the Samuelson-Glushko Intellectual Property and Information Law at Fordham Law; the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School; and the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law.

Engaging and inspiring students in digital rights litigation

By Oliver Butler, 5th July 2019

What can academics and the digital rights NGOs do to engage and inspire students? One of the real joys of working in Universities is being exposed to a wide range of passionate, bright and enthusiastic students. In addition to cultivating a rigorous and critical understanding of legal doctrine and scholarship, there is deep interest among students in connecting their studies to practice, policy development and advocacy of many kinds. This is especially true of human rights and digital rights.

A key strategic goal of the Bonavero Institute of Human Rights, where I am a research fellow, is to enrich the exposure of Oxford students to human rights, as well as promoting human rights conversations amongst law students globally. It was a real pleasure to learn from attendees at the Connecting the Digital Rights Field with Academia workshop about different models of student engagement. US legal clinics provide excellent opportunities for their students to develop legal skills through working with strategic litigators. It was particularly striking how well integrated such clinical courses can be with course seminars and broader structures.

At the workshops, we explored how US Law Schools differ from European legal education and what implications this has for effectively engaging students in the work of digital rights NGOs. An important difference lies in the composition of the main student population. JD students at US Law Schools are enrolled on a three-year professional degree course, having already completed undergraduate degrees, where the majority move into practice relatively quickly via State Bar exams. JD degrees have a greater focus on academic and professional development and clinics may be taken for course credit.

By contrast, at European Universities, the main population of law students are enrolled on undergraduate degrees. To take the UK as an example, legal education is divided into academic, vocational and professional stages. A qualifying undergraduate law degree fulfils the academic stage, although increasing numbers of students seek one-year LLM degrees for specialism and advanced study. One-year Legal Practice Courses and Bar Professional Training Courses fulfil the vocational requirements of professional regulators. Professional training is then completed during the first year or two of practice, either through barristers’ pupillages or solicitors’ training contracts. Opportunities during the academic stage are therefore focused on extra-curricular enrichment and career development, although some Universities do award course credit for clinical and other activities. PhD programmes are focused on scholarship and academic career paths, although they increasingly recognise that students might seek broader opportunities after completing a PhD thesis. Of course, many students take courses other than law while maintaining an interest in human rights and digital rights. In this regard, it is important not to overlook the value that computer scientists, economists, political scientists and other disciplines can bring to such projects.

Understanding the challenges these different contexts present and the incentives that may be available to attract students to assist in digital rights litigation is important for the success of student engagement. In our discussions, we noted the importance of distinguishing between different types of students. Undergraduates are understandably relatively inexperienced and the pace of short terms and frequent exams can make recruitment and retention challenging for non-credit participation. LLM courses are short and subject to similar intense teaching and examination schedules. Both types of student are typically only resident during term. PhD students can avoid some of these difficulties, especially when the engagement is related to their research and career ambitions, but they are relatively few in number compared to the other groups.

A key challenge is recruitment and retention, especially where students are under other pressures and engagement cannot be offered for course credit. The workshop discussed the incentives that could be used to address this. In some cases, payment for research assistance may be available but is typically low paid and can be subject to overall limits in some Universities. It is therefore important to recognise the role that recognition can play. Student engagement can be enhanced by ensuring it works as a career development opportunity. Engagement with NGOs with interesting work helps students to stand out in a competitive market, gain experience, and network to learn about the field. More formal recognition, such as letters of thanks, certificates of participation and personalised feedback at the end of programmes can incentivise participation and retention. Opportunities to present their work to NGOs, to publish blog posts, and participate in future internships are valuable and could be better showcased to prospective students. Retention through alumni networks or ambassador roles can also help to build on earlier successes, as can ongoing communication about the value of student input in NGO work.

A further challenge we discussed was the difficulty of engaging students in activities other than “soft” advocacy. European legal systems often limit the forms of legal work that students can undertake, even with appropriate supervision. However, there was a fruitful discussion of the role that students can play in comparative research, freedom of information requests, or formulating complaints to regulators to support NGO work.

The final challenge we discussed was funding for non-credit activities. We discussed the role that intern coordinators successfully play in helping students to identify sources of funds and the benefits of establishing living wage internships for students. This is especially important as funding can have a real impact on inclusiveness. Funding can play a valuable role in promoting diversity and ensuring that the availability of resources does not prevent passionate, bright and enthusiastic students from entering the digital rights field.

Engaging students can be a valuable way for digital rights litigators to bolster their capacity on appropriate projects, while raising awareness of digital rights and inspiring students to become future digital rights litigators and policy-makers.

About the author: Oliver Butler is a Fellow in Law at Wadham College, University of Oxford and a Research Fellow at the Bonavero Institute of Human Rights, University of Oxford.