by Carolyn E. Schmitt
It was 1999 and the dot-com bubble was about to burst. Corporations were scrambling to address new legal challenges online. Napster was testing the music industry. And at Harvard Law School, what is currently known as the Berkman Klein Center for Internet & Society was creating a clinical teaching program specializing in cyberlaw.
This clinical program, initially formed for a handful of students from Jonathan Zittrain’s Internet Law class, became the foundation of the Cyberlaw Clinic. It was the first of its kind, and the 2019–2020 academic year marks its 20th anniversary.
“As public interest technology became a more and more important theme in our society, it became clear that we needed to be training lawyers to do this important work. Nobody else was doing it, and I think it was really one of the most important things that the Berkman Klein Center did in its early days because it really did help to support a growing area of practice,” says John Palfrey ’01, then-executive director of the Berkman Klein Center and current president of the John D. and Catherine T. MacArthur Foundation. “People who have been trained in the clinic have now gone on to extremely important roles in private practice, in governments, in non-profit practice. And we’re really super excited to see how it’s grown and evolved over 20 years, which seems impossible, but it’s true.”
The clinic provides high-quality, pro bono legal services to clients on issues relating to the internet, technology, and intellectual property. Students earn course credit by working on real-world litigation, client counseling, advocacy, and contractual projects under the supervision of experienced attorneys.
Over the past two decades, students have supported clients on issues such as copyright, online speech, litigation, intellectual property, privacy, online safety, free speech and media law, digital civil liberties, government innovation, communications infrastructure, regulatory compliance, and more.
“The clinic was born at a very particular moment in the late nineties where a lot of attention was focused on the so-called ‘copyright wars,’ and Berkman and the clinic were in the midst of that in the early days,” says Christopher Bavitz, the WilmerHale Clinical Professor of Law and managing director of the Cyberlaw Clinic. “We still do a lot of copyright work, but our docket has expanded a lot to include privacy, speech, and other issues that have direct ties to technology’s impact on justice and fundamental rights.”
Most clients are individuals, small startups, nonprofit organizations, academics, and occasionally government entities. For example, the clinic works with Creative Commons, a nonprofit that provides a very broad set of licenses for people to license their works, and was incubated by the Berkman Klein Center in 2001. “The clinic has continued to do work with Creative Commons and also with others who are using Creative Commons licenses or open source software licenses. I think that’s definitely in the clinic’s DNA in a way,” Bavitz says.
Kendra Albert ’16 worked in the clinic during their third year at HLS. Now a clinical instructor, Albert leads students projects related to computer security, software preservation, and the First Amendment. One of the things they enjoyed the most, Albert says, was working with clients on specific legal needs.
“I’m continually trying to find ways to give my students now those direct client experiences that allow them to sort of have that same reaction. Which is ‘I can actually help people solve problems,’ rather than “This is an academic exercise,” Albert says. “I think that’s what’s special about the clinic—as opposed to other parts of the law school—is that you have the opportunity to both do focused technology law work, and to serve clients who have particular legal needs.”
In addition to working with clients, students are actively involved in writing and filing amicus briefs for current cases related to cyberlaw, the Fourth Amendment, and more. In the fall, for example, a pair of students worked with mathematician Cathy O’Neil on a comment about algorithmic discrimination for the United States Department of Housing and Urban Development.
Outside of the formal clinical program, the clinic’s staff and leadership involve students in their research at the Berkman Klein Center, including recent reports on AI and human rights and AI principles. Over the years, students have worked with the Youth and Media project on reports ranging from child protection and online safety to cyberbullying and sexting. Some clinic students have deepened their relationship with Berkman Klein, becoming student fellows.
When the Berkman Klein Center launched the Ethics and Governance of AI Initiative in 2017, the Clinic formed the Algorithms and Justice track of the Initiative. With logistical and research support from HLS students, the Clinic leads the AGTech Forum, a series of conferences for state attorneys general and their staff on pressing regulatory and enforcement issues concerning privacy, cybersecurity, and most recently, artificial intelligence.
“I sometimes joke with students that as technology’s reach expands, all law will be tech law. There’s some truth at the heart of that. Certainly, the Cyberlaw Clinic works with students on projects related to all the core issues of our day, from elections to antitrust policy, disinformation to anti-discrimination,” says Jessica Fjeld, the clinic’s assistant director. “If tech law in the ’90s was all about copyright, today I think it’s all about social justice: How we as attorneys can help ensure that technology is built and implemented in a way that remedies, rather than reifies, structural inequality. Our students understand that intuitively, and I love that we are here—and hopefully will be for the next twenty years and beyond—supporting them in their personal and professional growth, as they build their visions for a brighter future.”