With well over a billion websites in existence, finding the desired material on the Internet can be a challenge. Many individuals, businesses, and organizations are faced with the similar challenge of ensuring that their websites can be found by interested parties. Because websites are often the primary economic livelihood for individuals and businesses, the ease with which a website can be found is critical. Website designers, businesses, and advertisers have, therefore, gone to great lengths to ensure that their websites can be easily found by Internet search engines. Some website designers and businesses, however, have run afoul of intellectual property laws in their efforts to ensure that consumers can find their websites.

This article will examine the implications of the use of a competitor’s trademark as a website metatag or trigger advertisement. Part II will discuss the technological background of metatags and will examine the various contexts in which metatags and trigger ads have been used. Part III will discuss the relationship between trademark law and metatags and will examine the ways in which courts have treated metatag and trigger ad cases, particularly in the application of the fair use defense. Part IV will seek to draw an articulable legal distinction between which uses of a competitor’s trademark as a metatag or trigger ad should be infringement and which uses of a competitor’s trademark as a metatag or trigger ad should be fair use. This article will attempt to reconcile the inconsistency among various courts and will argue that the use of a competitor’s trademark as a metatag or trigger ad should not be fair use where the defendant’s intent is to usurp the plaintiff’s goodwill or to deceive consumers as to source or sponsorship.

Cite as 3 N.C. J.L. & Tech. 35 (2001) | Download PDF

Innovative technology is an essential asset in the information age. Most people have the ability to obtain information about almost any topic at the click of a mouse thanks to recent developments in Internet and home computer technology. But many people face obstacles in obtaining the same information due to mental and physical disabilities. Although technology has been developed to assist individuals with disabilities, most electronic and information technology is not compatible with these products. As a result, millions of people find it difficult or impossible to utilize basic electronic and information technology that non-disabled individuals use freely.

In an attempt to correct this disparity, Congress has amended the Rehabilitation Act of 1973 to include provisions that apply to federal agencies. Effective as of June 21, 2001, the 1998 amendment to section 508 of the Rehabilitation Act (herein section 508) requires all United States federal agencies to comply with accessibility standards administered by the Architectural and Transportation Barriers Compliance Board (herein Access Board). These standards ensure that electronic and information technology is accessible to disabled persons to the extent it does not pose an undue burden on an agency.

The following Recent Development provides insight on section 508, its application, requirements, exceptions, available solutions, and the remedies available for an agency’s failure to comply with the enumerated standards of section 508. Additionally, because of the overwhelming concern and confusion surrounding section 508’s effect on websites, this Recent Development will focus primarily on this aspect of the legislation.

Cite as 3 N.C. J.L. & Tech. 63 (2001) | Download PDF

The development of a technology-centered economy has increased the importance of patent rights. In order for these patent rights to have value, patentees must be able to ascertain the metes and bounds of their patent claims. In recent years the Federal Circuit has muddled means-plus-function claim limitation infringement analysis governed by 35 U.S.C. § 112, 6. Because the Federal Circuit uses different approaches to decide claims, it has become impossible to know the metes and bounds means-plus-function (MPF) limitations create.

For example, in two recent cases, Kemco Sales, Inc. v. Control Papers Co., Inc. and IMS Technology, Inc. v. Haas Automation, Inc., the Federal Circuit has used divergent approaches to analyze MPF claim limitation infringement. In Kemco, the court used the narrow approach to § 112, 6 infringement analysis, focusing on the structural equivalence of the accused structure to the patented structure. In IMS, the court used the contextual approach to infringement, looking at the claim limitation’s position in the context of the overall invention. This inconsistency unjustly forces inventors to rely on litigation to decide the scope of their patents’ rights to exclude.

In order to promote innovation, the more logical interpretation of 35 U.S.C. § 112, 6 is a narrow approach focusing on a simple structural equivalence comparison. This Comment shows the benefits of the narrow approach over the more complicated contextual approach.

Cite as 3 N.C. J.L. & Tech. 101 (2001) | Download PDF

On September 11, 2001, tragedy struck the United States after nineteen hijackers slipped past security in three American airports and, wielding only knives and box cutters, successfully gained control of four United States commercial airliners. The terrorists crashed two planes into the World Trade Center, collapsing the Twin Towers and killing more than 3000 people, and rammed a third plane into the Pentagon where there were an additional 189 casualties. The ability of hijackers to use our commercial jets as weapons of mass destruction proves that airport security is not only a concern for airline passengers, but also a threat to national security.

While increased airport security is necessary to protect Americans in the air and on the ground, it is vital to consider the effects of new security measures on the personal freedoms guaranteed by the Constitution. United States history, through the internment of Japanese Americans during World War II and the Palmer raids during the Cold War, proves that it is all too easy to forget civil liberties in times of insecurity. Unfortunately, the immediate situation poses many of the same complex problems that led to the adoption of the above security measures, which have since been blemishes on our long record of commitment to democracy and human rights. Because the terrorists walk among law-abiding citizens in this country and have been able to exploit our civil rights for their evil purposes, Americans’ ability to protect against additional attacks without somewhat restricting those rights is impeded. The threat of future attacks creates a sense of urgency that further increases the pressure on Congress to enact laws for the immediate protection of citizens that may later be seen as contrary to our belief in the principles of democracy and freedom.

This Comment addresses the security measures that are currently being used and those currently being considered for use in our nation’s airports. Sections I and II will discuss the constitutional protections of passengers’ civil liberties prominently involved in this analysis. The analysis of whether each of these technologies pass muster under the Fourth and Fifth Amendments of our Constitution is contained in Section III. Section IV outlines a constitutional solution.

Cite as 3 N.C. J.L. & Tech. 123 (2001) | Download PDF

Because Americans live in one of the most technologically advanced societies, our lives have already been monitored and our freedoms constrained by highly intrusive means. Employers can legally monitor their employees’ e-mails, and automobile drivers can be issued traffic tickets with the use of video cameras attached to stoplights. This comment will focus on one of the most intrusive means that recent technological advancements will now allow to be imposed upon us in the name of combating crime and ensuring safety: facial recognition.

Facial recognition is part of a larger category of technologies called biometrics that uses biological information, such as iris scans and handprints, to confirm identity. The use of facial recognition software in conjunction with public video surveillance (“facial recognition surveillance”) is quickly emerging as a means of tracking down criminals and other wanted individuals. In light of the September 11th tragedy, inquiries into how this technology can be used to prevent future attacks of this kind are now being explored with great urgency. Countering these inquiries are concerns that this form of electronic surveillance may be so intrusive that it violates our constitutional rights.

This Comment sets out to explore the constitutionality of facial recognition surveillance in the context of the Fourth Amendment. The evolution of this type of electronic surveillance will be examined in Part II of this article. Part III of this article will concentrate on how this technology works and will focus on its use in the first United States city to implement such surveillance. Part IV will discuss this type of surveillance and possible Fourth Amendment implications. The use of facial recognition technology in response to a national security interest, such as that created by the September 11th tragedy, will also be discussed in Part IV. Part V will conclude the Comment with a discussion of possible safeguards that should be put in place for this technology to operate effectively, whether use of the technology is in fact constitutional or only warrants use in certain situations.

Cite as 3 N.C. J.L. & Tech. 151 (2001) | Download PDF

Following the tragic events which occurred in the United States on September 11, 2001, the threat of violence due to hate-based ideas and values has become a pressing reality. Americans have been forced to question whether hate-filled online rhetoric is simply the harmless exercise of free speech or is a preventable catalyst of illegal conduct. The death and destruction caused by terrorists who listened to and adopted anti-American views are reminders that speech can often spur dangerous actions in response.

As the national security of the United States has become increasingly important in recent months, the debate regarding the censorship of hate speech has again arisen. While many individuals remain wary of infringing upon First Amendment rights through the regulation of hate speech in cyberspace, some suggest that the expansive and pervasive nature of the Internet calls for such regulation.

This Comment will attempt to illustrate the need for increased regulation of hate speech on the Internet by examining three facets of this debate. It will first examine existing First Amendment precedent dealing with freedom of expression issues generally. It will then examine how this structure limits the government’s ability to regulate hate speech on the Internet. This section will also explore other legal means that are being used to regulate hate speech. Finally, it will conclude by taking a look at alternative techniques that are being used to protect individuals from hate speech.

Cite as 3 N.C. J.L. & Tech. 175 (2001) | Download PDF

Timothy J. McVeigh was sentenced to death on August 14, 1997, for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, which left 168 people dead. Although United States Attorney General John Ashcroft explained that “all the citizens of the United States were victims of the crimes perpetrated by Mr. McVeigh,” all such victims were not allowed to watch McVeigh’s execution by lethal injection at the United States Penitentiary at Terre Haute (USPTH) on June 11, 2001.

In Entertainment Network, Inc. v. Lappin, Internet content provider Entertainment Network, Inc. (ENI) requested permission to record and simultaneously broadcast McVeigh’s execution via the Internet or, alternatively, to gain access to the live audiovisual transmission of the execution for the purpose of broadcasting that material. The Bureau of Prisons (BOP) declined ENI’s request on the grounds that 28 C.F.R. § 26.4(f) prohibited such recording. Section 26.4(f) states that, except as otherwise ordered by a court, “[n]o photographic or other visual or audio recording of . . . [an] execution shall be permitted.” ENI’s challenge was “to its face,” meaning that, if successful, the section 26.4(f) ban could no longer be enforced against any member of the press.

This note examines the reasons why the ENI court upheld the ban on the press’s ability to record executions. After explaining the court’s reasoning, it will discuss how, although the ruling was not surprising, the court erred in finding section 26.4(f) to be content neutral and gave unwarranted, uncritical weight to the government interest in upholding the ban. Given the terrorist events in New York City and Washington, D.C., on September 11, 2001, this note also examines the press’s rights of access in the event that suspected terrorist Osama bin Laden should be somehow captured, tried in an American court, and executed. It will finally present a number of compromises that would have been more appropriate on the facts of ENI.

Cite as 3 N.C. J.L. & Tech. 193 (2001) | Download PDF