Biography
Professor Mailyn Fidler joined the faculty in August 2022, where she is affiliated with the Nebraska Governance & Technology Center. Professor Fidler received her B.A. with Honors in Science, Technology, and Society from Stanford University and her MPhil in International Relations from Oxford University, where she was a Marshall Scholar. After completing a fellowship at the Berkman Klein Center for Internet & Society at Harvard University, she received her JD from Yale Law School, where she was a student director for an impact litigation clinic. After law school, she continued her work in impact litigation as the Technology and First Amendment Fellow with the Reporters Committee for Freedom of the Press. She also clerked for The Honorable Robert Bacharach on the Tenth Circuit Court of Appeals.
Professor Fidler’s scholarship focuses on the intersection of criminal law, technology, and speech. She is an expert on the Fourth Amendment and changing technology. In broader criminal law, she writes about often overlooked aspects of criminal proceedings, including jury nullification, sentence mitigation, and allocution. Her work also analyzes ways that criminalization intersects with regulation of speech, including on the Internet. She is also an expert on international cybersecurity and cybercrime regulations, with a particular focus on Africa. Outside of criminal law, she also studies the way that legal regimes governing intellectual property, speech, and secrecy intersect. At Nebraska, she teaches criminal law and procedure, cybersecurity, and copyright.
Courses
Criminal Law
Substantive criminal law, focusing on the theoretical foundations, general principles and doctrines that govern the rules of liability and defenses, both in the common law tradition and under the Model Penal Code.
Criminal Procedure 631
Survey of the basic issues of criminal procedure with particular emphasis on the fourth, fifth, and sixth amendments to the United States Constitution and their impact on the criminal justice system.
Copyright Law 711/G
A course on the protection of literary, musical, artistic, and audiovisual works under the laws of Copyright and Unfair Competition. Topics include the standards for copyright protection; procedural issues including copyright notice, registration, and duration; rules governing copyright infringement and fair use; and issues arising from digital technologies, including the distribution of copyrighted works over the Internet and the use of technological measures to protect copyrighted works.
Cybersecurity and Sectoral Data Regulation 582
This class provides an introduction to various legal frameworks relating to data- and cybersecurity, such as data breach notification laws, regulatory data security requirements such as contained in HIPAA and GLBA, and the patchwork of statute and common law tools available for addressing cybersecurity concerns. It also prepares students to interact with professionals in other fields relevant to cybersecurity practice, and broader policy discussions about cybersecurity law and policy. This course is available to online LLM students. Pre-requisite: Technology Governance and Regulation: Concepts.
Articles
Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude 76 SMU L. Rev. ___ (2023)
The New Editors: Refining First Amendment Protections for Internet Platforms 2 NOTRE DAME J. EMERGING TECH. 241 (2021).
Local Police Surveillance and the Administrative Fourth Amendment 36 SANTA CLARA HIGH TECH. L.J. 481 (2020)
First Amendment Sentence Mitigation: Beyond A Public Accountability Defense for Whistleblowers 11 HARV. NAT’L. SEC. J. 214 (2020)
Regulating the Zero-Day Vulnerability Trade: A Preliminary Analysis 11 I/S: J.L. & POL’Y FOR INFO. SOC’Y 405 (2015) (peer-reviewed) (now OHIO STATE TECH. L. J.)
Books
RULES AS RESISTANCE: CYBER POLITICS AND AFRICA’S QUEST FOR AUTONOMYBook manuscript (under contract))
Book Chapters
Facial Recognition Technology in the United States, in FACIAL RECOGNITION TECHNOLOGIES: LEGAL, SOCIAL, AND POLICY PERSPECTIVES (Cambridge University Press) (forthcoming) (with Gus Hurwitz)
Infrastructure, Law, and Cyber Stability: An African Case Study, in CYBER (IN)STABILITY (Robert Chesney, James Shires, Max Smeets, eds., Edinburgh University Press) (2023) (forthcoming),
Government Acquisition and Use of Zero-Day Software Vulnerabilities, in CYBER INSECURITY: NAVIGATING THE PERILS OF THE NEXT INFORMATION AGE (Trey Herr & Richard Harrison eds.) (2016)
Presentations
Tech Law as Politics, African Data Protection Laws: Regulation, Practice, and Policy University of Ghana School of Law (Fall 2022)
Rethinking Trade Secret Discovery in Criminal Litigation Works in Progress Intellectual Property Colloquium, St. Louis University School of Law (Winter 2022)
Regional Cybersecurity Laws, Cybersecurity Law and Policy Scholars Conference University of Minnesota Law School (Fall 2021)
Discussant, The Approaches of Non-Western States to International Law and Cyber Operations NATO Cooperative Defense Center of Excellence (Fall 2021)
A Partial Property Rights Theory of the Fourth Amendment Privacy Law Scholars Conference (Spring 2021)
Subaltern Cyber Stability Leiden University (Spring 2021)
Subaltern Cyber Stability Nebraska Governance and Technology Center Workshop (Spring 2021)
Guest lecture, Cyber Threats and Legal Responses, United States Military Academy West Point (Spring 2021)
Guest lecture, Legal Threats to Press Freedom Northwestern Medill School of Journalism (Fall 2020)
Data as Property for the Fourth Amendment University of Nebraska Law & Tech Junior Scholars Workshop (August 2020)
Local Surveillance Berkman Klein Center for Internet & Society Cybersecurity Workshop (March 2019)
Local Surveillance Tufts Graduate Student Symposium in Cybersecurity Policy (March 2019)
Panelist at U.K. Foreign Policy in Changed World Conditions House of Lords International Relations Committee Roundtable with Early Career Experts (invitation only) (July 2018)
Panelist at Bipartisan Cybersecurity Policy Workshop U.S. Senate (invitation only) (November 2017)
Invitation-only roundtable participant at “The Vulnerability Equities Process and the Underground Economy" Center for Strategic and International Studies, March 2017
Invitation-only roundtable participant at “MLATs in the Global South RightsCon, March 2017
Interviewed on Mozilla’s “IRL” podcast regarding police surveillance August 2017
Panelist, Government Hacking: Vulnerability Equities Process Stanford Law School (2016)
Other
Media
Interviewed in Norfolk Case Highlights Post-Roe Privacy, Abortion Issues Nebraska Public Media, 11 Aug. 2022,
“Breaking Down Section 230 and Moderating Content Online,” Tech Refactored, 9 June 2022
“Put Down that Scanner: Encrypted Police Communications and Civil Liberties,” Tech Refactored, 3 Sept. 2021
“The New Editors,” Tech Policy Podcast, 26 Aug. 2021
“Court Upholds Legal Challenge Under California Statewide Stingray Law,” Lawfare, 5 Jan. 2021
“Four Obstacles to Local Surveillance Ordinances,” Lawfare, 4 September 2020 (with Lily Liu),
“Fourteen Places Have Passed Local Surveillance Laws. Here’s How They’re Doing,” Lawfare, 3 September 2020
“Disinformation Colonialism and African Internet Policy,” Net Politics Council on Foreign Relations, 21 November 2019
“Conscientious Objectors and Whistleblowers: Sentencing Should Recognize First Amendment Interests,” Just Security, October 2018
“African Union Bugged by China: Cyber Espionage as Evidence of Strategic Shifts,” Net Politics – Council on Foreign Relations, 7 March 2018
“In the U.S.-U.K. Deal, Both Sides Deserve Scrutiny.” Just Security, 9 August 2017
“The Weak Link in a Double Act: U.K. Law is Inadequate for Proposed Cross-Border Data Request Deal.” Lawfare, 11 July 2017
“PATCH: Debating Codification of the VEP.” Lawfare, 17 May 2017
“South Africa Introduces Revised Cybercrime Legislation, Acknowledging Criticism.” Net Politics – Council on Foreign Relations, 7 March, 2017,
“Investigating Surveillance Around Standing Rock.” Just Security, 16 November 2016
“Africans Want Cross-Border Data Access Reform, But They Might Get Left Out.” Net Politics – Council on Foreign Relations, 26 October 2016,
“A Response to ‘The Tech:’ Continuing the Vulnerability Equities Process Debate.” Just Security, 13 September 2016
“The Vulnerability Equities Process Should Consider More than Intelligence Community Needs.” Just Security, 2 September 2016
“Cyber Diplomacy with Africa: Lessons from the African Cybersecurity Convention.” Net Politics – Council on Foreign Relations, 7 July 2016
“The African Internet Governance Forum: Continued Discomfort with Multistakeholderism.” Net Politics - Council on Foreign Relations, 20 October 2015
“MLAT Reform: Thoughts from Civil Society.” Lawfare, 11 September 2015
“The African Union Cybersecurity Convention: A Missed Human Rights Opportunity.” Net Politics - Council on Foreign Relations, 22 June 2015,
“Proposed U.S. Export Controls: Implications for Zero-Day Vulnerabilities and Exploits.” Lawfare, 10 June 2015
“Update: Changes to Export Control Arrangement Intended to Apply to Surveillance Technology, not Exploits, but Confusion and Ambiguity Remain.” Just Security, 19 February 2014
“Changes to Export Control Arrangement Apply to Computer Exploits and More.” Just Security, 15 January 2014