Intellectual Property

This Article argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. This Article explains how usual IP norms can frustrate public health and national security, why current proposals for a pandemic agreement are largely inadequate, as well as what countries can and should do to protect national security even if there is not adequate consensus for binding obligations in an international pandemic agreement.

This Article considers the national security implications of the legal vacuum concerning modern enhancements of data mining. Its key insight is to distinguish big data as an emergent entity from the countless events that constitute collectable information. The distinction allows us to think separately about the property entitlements and regulatory constraints attributable to the elements and the systems. This analytical step in turn clarifies which legal approaches may advance national security interests consistent with other values and commitments.

In 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which required TikTok’s parent company ByteDance to sell TikTok to a company in a “non-adversarial” country or be banned from the United States. TikTok challenged the regulation, in part, as a violation of the Fifth Amendment’s Takings Clause, which would permit the government to ban TikTok so long as it compensates ByteDance. Because PAFACA applies to applications beyond TikTok, it raises a broader question: does the Takings Clause require government compensation for bans on foreign web services? This Comment argues the answer is no.

The COVID-19 pandemic has laid bare inherent tensions between the protection of intellectual property (IP) and the health of individuals touched by life-threatening medical conditions. Instead of looking for solutions that would entail legislative action, a stretch of emergency powers, or vague private commitments, we suggest that the law already provides a mechanism for addressing this tension in the form of the age-old common tort law doctrine of necessity.