Friday, May 29, 2015
Law, Privacy, and Surveillance in Canada in the Post-Snowden Era, edited by Michael Geist, is now available from the University of Ottawa Press. Professor Geist is a well known scholar in the area of IP and technology law. The book is $55 in paper, but the press is making the text available as a free download as part of its Open Access program; check the webpage (click on the link provided above).
May 29, 2015 | Permalink
Wednesday, May 27, 2015
FCC Chair Tom Wheeler is proposing new ways to protect consumers against unwanted phone calls, including robocalls and sales messages. In a proposal he began circulating today, Mr. Wheeler listed a number of actions which would allow consumers to protect themselves from such unwanted intrusions. For example, consumer could revoke consent to receive such messages at any time "in any reasonable way." Carriers could begin offering robocall blocking technology to consumers. Consumers who inherit phone numbers from other users who had refused such calls could also direct callers to desist after one such call. Here's a link to the fact sheet for the proposal.
A vote on the proposal is scheduled for the FCC's June 18, 2015 meeting.
If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being sold with unnecessary harmful characteristics and being advertised in ways that encourage youth experimentation and use. Unless effectively regulated, e-cigarette use will be more harmful than necessary and their advertising will work to: (a) increase initiation among both youth and non-tobacco-using adults; (b) prompt former smokers to relapse back into addicted nicotine use; (c) encourage smokers to use e-cigarettes where they cannot smoke; and (d) prompt smokers to switch to e-cigarettes instead of quitting all tobacco and nicotine use. This paper proposes a viable way to regulate e-cigarettes and their advertising both to minimize the health harms they might cause and to allow e-cigarettes to fulfill their potential as cessation aids or harm-reduction products. Normally, any efforts by FDA to establish effective advertising restrictions must accommodate considerable constraints from the First Amendment’s commercial speech protections. However, because of existing text in the Tobacco Control Act, on the effective date of the final FDA deeming rule that puts e-cigarettes under FDA’s active tobacco product jurisdiction all nicotine-containing e-cigarettes will be on the U.S. market illegally until they can obtain permissive orders from FDA. That situation should reduce applicable First Amendment constraints, providing FDA with a tremendous opportunity to place the kinds of substantial restrictions and requirements on e-cigarette advertising necessary to minimize their harmful aspects and maximize their potential to produce substantial net public health benefits.Download the article from SSRN at the link.
The American Federation of Musicians is still hearing sour notes. Eriq Gardner (The Hollywood Reporter) reports that the AFM has filed a second lawsuit against the biggest studios in Hollywood (Columbia Studios, Paramount, Twentieth Century Fox, and others) for repeatedly using soundtrack clips from older films for new movies. The clips, sometimes as short as 18 seconds, come from such well-known films as Titanic and Battle for the Planet of the Apes and, says AFM, were used without permission. Mr. Gardner provides a copy of the complaint in his article for THR.
Last month, AFM sued three of the largest studios, Paramount, Warner Brothers, and MGM, for violating a 2010 agreement that guaranteed that films made in the United States or Canada would have soundtracks recorded in those countries (complaint made available courtesy of Eriq Gardner). More here on the suit from Billboard, here from the Los Angeles Times.
Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement suits and potentially chill much creative activity. This Article examines the impact of copyright doctrine on remixes with an emphasis on crowdsourced projects.Download the text of the article from SSRN at the link.
Such an analysis is particularly salient at this juncture since consumers are neither as passive nor as isolated as they once were. Specifically, large-scale crowdsourced projects raise issues relating to copyright and fair use on a scope and scale never before imaginable. As such, this Article reflects on the particular problems raised by the growth of crowdsourced projects and how our copyright regime can best address them. We conclude that future legal developments will require a thoughtful and sophisticated balance to facilitate free speech, artistic expression, and commercial profit. To this end, we suggest a number of options for legal reform, including: (a) reworking the strict liability basis of copyright infringement for noncommercial works; (b) tempering damages awards for noncommercial or innocent infringement; (c) creating an “intermediate liability” regime that gives courts a middle ground between infringement and fair use; (d) developing clearer ex ante guidelines for fair use; and (e) reworking the statutory definition of “derivative work” to exclude noncommercial remixing activities. These reform proposals are particularly timely in light of the House Judiciary Committee’s on-going review of copyright law.
Tuesday, May 26, 2015
David Erdos, University of Cambridge Faculty of Law; Trinity Hall, is publishing a revised version of Fundamentally Off Balance: European Union Data Protection Law and Media Expression in International and Comparative Law Quarterly (2015). Here is the abstract.
The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction’s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection’s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.
Download the article from SSRN at the link.
The National Journal on the effects of the expiration of Patriot Act Section 215.
Coverage here from the BBC of Andy Coulson's perjury trial. Today the jury heard from James Weatherup, a former editor, at the now shuttered paper News of the World that phone hacking was standard procedure. Mr. Coulson, a former News of the World editor, is charged with lying at the 2010 trial of Tommy Sheridan. Mr. Sheridan had successfully sued NotW for defamation in 2006. Mr. Coulson was convicted of phone hacking last year. (One really needs a program to follow the ins and outs of the litigation here).
Michael de la Merced discusses and analyzes Charter Communications' takeover of Time Warner Cable for the New York Times here.
Earlier this year, Comcast abandoned its bid to purchase TWC in the face of opposition from federal regulators. Comcast's offer was $45 billion, $10 billion less than Charter's current offer. More coverage here from The Hollywood Reporter.
Friday, May 22, 2015
The Hollywood Reporter reports that the popular TLC show "19 Kids and Counting" is no longer on TLC's schedule after Josh Dugger, the oldest of the Dugger children, admitted to molesting several underage girls, including some of his sisters, 12 years ago. TLC hasn't indicated how long the show will be off the network's regular schedule. More coverage here from TMZ, which notes that General Mills has dropped the show from its advertising.
TLC faced similar controversy last year when Mama June, one of the stars of its reality show "Here Comes Honey Boo-Boo," began dating a man who had apparently been convicted of child molestation. The network cancelled the show.
Thursday, May 21, 2015
President Obama has re-nominated Jessica Rosenworcel to the Federal Communications Commission. Links to FCC Chair Tom Wheeler's statement, Commissioner Clyburn's statement, Commissioner Pai's statement, Commissioner O'Rielly's statement, Commissioner Rosenworcel's statement.
Lili Levi, University of Miami School of Law, has published A 'Faustian Pact'?: Native Advertising and the Future of the Press. Here is the abstract.
As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of “native advertising” – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers’ well-documented ad avoidance. Although the native advertising model debuted on digital native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew “native” had “arrived for good” when the venerable New York Times not only introduced its online “Paid Post,” but incorporated sponsored content in its print editions, and even hired an in-house branded content production team to conceive and execute the embedded ads on behalf of advertisers. Because such integrated advertising must inevitably flirt with disguise and deception, administrative and scholarly attention has principally addressed it through a consumer protection lens. Yet this conventional frame ignores the more insidious hazards of this transformational development. Apart from confusing at least some consumers, the turn to native ads will profoundly hobble the press in the exercise of its democratic role and will invite recalibration of its privileged constitutional status. These effects are particularly troubling in an age when increases in global state power and new forms of censorship most call for a powerful, independent and fearless press. Still, since native advertising is here to stay, admittedly imperfect responses must be explored. In that spirit, this Article proposes three solutions: 1) designing sponsorship disclosure at the per-ad level in close alignment with results of rigorous empirical research regarding consumers’ cognitive and perceptual responses to labeling; 2) adopting an additional new approach to corporate-level disclosure – highlighting advertiser identity and spending – in order to aid public oversight over the editorial independence of news organizations; and 3) addressing structural impediments to collective action by news organizations in order to promote collective strategies for effective self-regulation in the deployment of native advertising.
Download the article from SSRN at the link.
Wednesday, May 20, 2015
Ronald J. Krotoszynski, Jr., University of Alabama School of Law, has published Bringing Meiklejohn to Privacy: On the Essential Complementarity of Privacy and Speech in Information and Law in Transition 243 (Anna-Sara Lind, Inger Osterdahl, and Jane Reichel, eds., Liber, 2015). Here is the abstract.
The standard account of the relationship between privacy and speech posits that privacy and speech constitute restive neighbors lacking good fences – essentially conflicting, rather than complementary, rights. And, as Robert Frost observed, "good fences make for good neighbors." In many circumstances, privacy and speech do present conflicting human rights values that courts must reconcile. However, if one posits that freedom of speech merits constitutional protection primarily because of its role in facilitating democratic self-government, then privacy and speech actually possess a necessary and inescapable connection. Simply put, a surveillance state may be many things, but it will not be a functioning participatory democracy; a society without privacy cannot be fundamentally democratic in nature. Alexander Meiklejohn forcefully argued that the best rationale for protecting speech arises from its integral relationship to the project of democratic self-government. Speech has value, and merits protection, because democratic self-government cannot exist without it. Strictly speaking, Meiklejohn never wrote about privacy and its relationship to democratic self-government. However, the logic of his position clearly would support extending constitutional protection to privacy as well as to speech. This Chapter argues that a strong and important linkage exists between privacy and democracy. Indeed, one of the best rationales for affording privacy protection is privacy’s relationship to self-government. Accordingly, we should think of privacy and speech as essentially complementary, rather than conflicting, human rights. As Frost observed, "Before I built a wall I’d ask to know/What I was walling in or walling out/And to whom I was like to give offense." So too, in thinking about privacy and speech, we should take care to focus sustained attention on how these two rights work together to facilitate democracy. Moreover, we must avoid the potential trap of viewing their relationship exclusively through the lens of those instances in which these rights conflict and require courts to engage in careful line drawing and balancing.
Download the essay from SSRN at the link.
Recent disclosures of the secret legal rules governing a variety of government programs — from electronic surveillance to targeted killing — have demonstrated that secret law not only exists, but is a regular feature of governance in this country, particularly in matters of national security. While the government is surely entitled to carry out certain functions in secret, the notion that the very rules that empower and constrain the government could themselves be secret is deeply unsettling, raising profound concerns about government’s accountability, the public’s role in a democracy, and the protection of individual liberties.The full text is not available from SSRN.
While there is a significant literature on the government’s authority to keep secrets in general, the government’s power to keep the law itself hidden from the public is a special problem that has thus far received little scholarly attention. This Article is the first to offer a general examination of the phenomenon of secret law in the context of national security, describing its place in the existing transparency regime, providing an account of the competing normative commitments that animate debates about secret law’s legitimacy, and offering proposals rein in the practice of secret law.
The Article argues that existing institutional arrangements give the executive branch significant discretion to keep law secret. This creates an equilibrium that produces too much secret law, and fails to adequately account for strong countervailing interests in transparency. Drawing on contemporary examples of secret laws governing surveillance, watch-listing, and targeted killings, the Article proposes both institutional and substantive reforms that would result in a more defensible and stable legal equilibrium that produces fewer problematically secret laws. In particular, it argues that Courts should adopt a clear statement rule against secret law so that law must be disclosed unless secrecy is specifically authorized by Congress. Such a rule would result in a better accommodation between secrecy interests and transparency values by requiring inter-branch contestation and agreement on the scope of secret law. Moreover, a presumption against secret law is grounded in Constitution’s text and structure, notably the Presentment and Journal Clauses, and the First Amendment.
We study the interplay between online news, reader comments, and social networks, to detect and characterize a new form of unintentional information leakage - the accidental disclosure of confidential information not intended for public release. The military and judiciary use censorship to maintain security. Non-identification by name is considered necessary protection for certain personnel, witnesses, minors, victims or suspects. Examining 3582 comments made on 48 articles containing obfuscated terms collected from 37 news organization Facebook pages, we find that a systematic examination of comments can compromise censorship. We identify and categorize unintentional information leakage in comments indicative of knowledge of censored information. Our findings support using memory theories regarding familiarity, recall, and ‘feelings of knowing’ in the analysis of comments.Download the article from SSRN at the link.
Tuesday, May 19, 2015
Patricia Aufderheide, American University School of Communication and Aram Sinnreich, American University, have published Documentarians, Fair Use and Free Expression: Changes in Copyright Attitudes and Actions with Access to Best Practices. Here is the abstract.
This study, based on a survey of 489 documentary filmmakers, is a case study in copyright policy in and through practice. It assesses the changes in documentary production practice around clearance of copyrighted material since the creation of the Documentary Filmmakers’ Statement of Best Practices in fair use in 2005. Fair use, an exotic and occasional feature of documentary film in 2004, has become well-known and commonly employed. Creative options for filmmakers concerning use of third-party material have dramatically improved with changes in norms after the issuing of the Statement. Attitudes about fair use are strongly associated with free expression and creative opportunity, and vary with experience. Where filmmakers have changed work because of copyright concerns, they themselves rather than any gatekeeper have made the decision to do so. Where change is associated with fair use, risk is a common concern. Newer filmmakers are more likely to support use of copyrighted material to make new work, but less likely to know about fair use, and also more likely to have experienced takedowns online. Both education about and experience with fair use appear to have an effect on practice. Filmmakers continue to lack reliable information on the actual risk landscape, and about fair use on digital platforms.
Download the article from SSRN at the link.
If you were on Facebook in January 2012, there is a chance that it tried to make you sad. If you were on OkCupid, there is a chance that it tried to match you up with someone incompatible. These were social psychology experiments: Facebook and OkCupid systematically manipulated people's environments to test their reactions. Academics doing similar experiments in a university setting would typically need to obtain informed consent from participants and approval from an Institutional Review Board (IRB). But Facebook and OkCupid, and the academics working with Facebook, had neither. This, I believe, is a problem.Download the article from SSRN at the link.
These experiments offer us a moment for reflection, a chance to discuss the law and ethics of experiments on social media users. In this essay, I will consider social media research through the prism of the Facebook and OkCupid experiments. I will focus on three questions: (1) When do social media experiments constitute research involving people? (2) What does it take to obtain the informed consent of users? (3) What institutions are responsible for reviewing such experiments?
Part I offers an initial review of the Facebook and OkCupid research projects. Part II -- the bulk of the essay -- takes up these questions under current law. Part III considers the broader question of what the rules for regulating social media research ought to be. The most immediately pressing priority is to prevent the unraveling of the existing ethical framework through IRB laundering, in which a regulated institution outsources enough work to an unregulated one to evade IRB review and informed consent. Looking further ahead, I offer some tentative thoughts on the scope of coverage, informed consent, and oversight for social media experiments. Finally, the conclusion reflects on how we should think about "consent" in this setting.
This Article revisits the free speech protections due leakers in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have -- and reportedly have had -- on the speech marketplace. The Article also explains that while the increase in prosecutions and other recent developments, including new government surveillance practices, heighten existing strains on the marketplace of ideas, the developments themselves are not the source of those strains. The core source, rather, is a legal framework in which the government is assumed to have a wide leeway to prosecute leaks of classified information with only a very minimal burden to show possible national security harm and no obligation to assess the value of the information at stake. This framework, particularly when combined with the classification system’s dramatic overbreadth, leaves the door wide open for content-targeted prosecutions, or at minimum for slanted chilling effects corresponding with administration-friendly viewpoints or subject matters. Recent developments simply highlight these basic problems. They also illuminate the need for First Amendment standards that define and limit, in some meaningful way, the subsets of classified information whose conveyance can be prosecuted constitutionally. In past work, I have proposed such standards. This Article, drawing partly on recent leak cases, expands on the nature and feasibility of the standards.Download the article from SSRN at the link.
Monday, May 18, 2015
Mae Kuykendall, Michigan State University College of Law, is publishing Evaluating the Sociology of First Amendment Silence in volume 42 of the Hastings Constitutional Law Quarterly (2015). Here is the abstract.
The First Amendment expressive associational freedom analysis of the 2000 mid-culture-wars case of Boy Scouts v. Dale adopts an understanding of conventions permitting, or mandating, silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scout masters, despite a New Jersey statute barring such discrimination from a “public accommodation.” The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which to strengthen the freedom of speech and association that flourishes in voluntary associations. The silence principle, embraced at the time by legal commentators as a win for free speech and the construction of identity, had the dichotomous effect of engendering more elite speech, as among academics, but silencing non-elite speech, that is, among young men excluded from a group that their peer group could join without identity-based barriers. The effect of the teaching by the Court was to affirm a preference for speech and identity silos, in which customs of silencing enjoyed immunity from unwanted messages and in which certain persons could be deemed inherently unwelcome embodiments of a breach of silence. This Article revisits Dale to explore the implications of Dale for civic engagement — for maintaining open civic space for contact and speech as a First Amendment value. Awarding a shield against contact with contrary views and identities disables policy-makers from supporting principles that, on empirical examination, may enrich discourse and enhance overall civic space. The failure of the Court to engage with a sociology of civic space will be examined for its import for the meeting point between social customs of control and the aspiration of the First Amendment to an engaged, expressive citizenry and to the dissemination of knowledge.
Download the article from SSRN at the link. Cross-posted to the Law and Humanities Blog.
Ronald J. Krotoszynski, Jr., University of Alabama School of Law, has published Reconciling Privacy and Speech in the Era of Big Data: A Comparative Legal Analysis at 56 William & Mary Law Review 1279 (2015). Here is the abstract.
In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper’s interest in publishing the photograph and the subject’s interest in privacy. Although generalizations often oversimplify complex legal, cultural, and moral understandings, it nevertheless remains true that European courts tend to place greater relative emphasis on safeguarding privacy than do courts in the United States. Thus, the standard narrative posits that the United States gives an absolute priority to speech, over vindication of privacy interests, whereas European law tends to discount the importance of expressive freedom in favor of more reliably safeguarding privacy. At one level of analysis, this standard account gets things right — protected speech is both wider and deeper on this side of the Atlantic than in contemporary Europe. This standard account, however, underestimates the European commitment to protecting expressive freedom; the European commitment to safeguarding privacy does not, and will not, invariably override free speech. A comparative legal analysis also demonstrates that privacy is far from dead in the United States. Going forward, the challenges presented by the advent of "Big Data" and society-wide government surveillance programs increasingly will require both the United States and Europe to see privacy as an essential condition for safeguarding speech. Democratic self-government presupposes an ongoing dialogue among citizens, but an open dialogue about government simply cannot exist in a surveillance state. In the brave new world of PRISM and secret government manipulation of metadata, we must recognize that privacy and speech are fundamentally complementary, rather than competing, human rights. Moreover, this is a lesson that comparative legal analysis can teach.
Download the article from SSRN at the link.