Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, September 24, 2019

Cetina Presuel and Martinez Sierra on Social Media Platforms as News Publishers and Distributors @RodrigoCetina

Rodrigo Cetina Presuel and J. Martinez Sierra have published Algorithms and the News: Social Media Platforms as News Publishers and Distributors at 18 Revista De Comunicación 261-285 (2019). Here is the abstract.

With billons of users, social media platforms (e.g. Facebook) are dominant players in a highly-concentrated online news market. They have great power over the distribution of information to their users, and over the organizations and individuals that produce it. Social media platforms use algorithms to perform functions traditionally belonging to news editors: deciding on the importance of news items and how they are disseminated. However, they do not acknowledge the role they play in informing the public as traditional news media always have and tend to ignore that they also act as publishers of news and the responsibilities associated with that role. This paper argues that it is essential for social media platforms to understand and embrace their role as both news publishers and distributors and highlights the essential responsibilities they must undertake so they can satisfy the information needs of their audiences and protect the public’s right to information.

Download the article from SSRN at the link.

September 24, 2019 | Permalink

Silbey and Hartzog on the Upside of Deep Fakes @JSilbey @hartzog

Jessica M. Silbey and Woodrow Hartzog, both of Northeastern University School of Law, have published The Upside of Deep Fakes at 78 Maryland Law Review 960 (2019). Here is the abstract.

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic discourse and trust in social institutions, undermining public safety, national security, journalism, and diplomacy, deepening social divisions, and manipulation of elections. But it might not be all bad. Even beyond purported beneficial uses of deep-fake technology for education, art, and science, the looming deep-fake disaster might have a silver lining. Hear us out. We think deep fakes have an upside. Crucial to our argument is the idea that deep fakes don’t create new problems so much as make existing problems worse. Cracks in systems, frameworks, strategies, and institutions that have been leaking for years now threaten to spring open. Journalism, education, individual rights, democratic systems, and voting protocols have long been vulnerable. Deep fakes might just be the straw that breaks them. And therein lies opportunity for repair. Below we briefly address some deep problems and how finally addressing them may also neutralize the destructive force of deep fakes. We only describe three cultural institutions – education, journalism, and representative democracy — with deep problems that could be strengthened as a response to deep fakes for greater societal gains. But we encourage readers to think up more. We have a hunch that once we harness the upside of deep fakes, we may unlock creative solutions to other sticky social and political problems.

Download the article from SSRN at the link.

September 24, 2019 | Permalink

Monday, September 23, 2019

University of Georgia School of Law Seeks Full-Time Director for New First Amendment Clinic @UGASchool of Law

The University of Georgia School of Law is accepting applications for a full-time director for its new First Amendment Clinic. The position will begin in January 2020. Information about the posting is available here:

September 23, 2019 | Permalink

Norton on The Government's Speech and the Constitution

Helen L. Norton, University of Colorado Law School, has published Introduction (Excerpt), The Government's Speech and the Constitution, from The Government's Speech and the Constitution (Cambridge University Press, 2019). Here is the abstract.

When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us? In “The Government’s Speech and the Constitution,” Professor Helen Norton investigates the variety and abundance of the government’s speech, from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today’s digital age. This helps us understand how the government’s speech has changed the world for better and for worse, and why the government’s speech deserves our attention and at times our concern.

Download the excerpt from SSRN at the link.

September 23, 2019 | Permalink

Thursday, September 19, 2019

FCC Establishes First Two Innovation Zones

From an FCC press release:


New York City & Salt Lake City Projects Empower Advanced Wireless Technology and 5G-Ready Network Experimentation
WASHINGTON, September 16, 2019—The Federal Communications Commission today announced the creation of its first two Innovation Zones, in New York City and Salt Lake City. These Innovation Zones will be city-scale test beds for advanced wireless communications and network research, including 5G networks.

“Few concepts are more central to America than experimentation and innovation. It’s what we do best,” said FCC Chairman Ajit Pai. “So it’s exciting and inspiring to see our Innovation Zones program taking off. These projects will test new advanced technologies and prototype networks like those that can support 5G technologies. We’re also establishing a process to ensure new innovators can have access to this testing resource while protecting current, licensed users. I thank all those who are leading these efforts on the ground and stand committed to continuing our efforts to empower innovators.”

These wireless technology test beds extend the geographic areas in which already-licensed experimental program licensees can conduct tests. Under this initiative, parties have flexibility to conduct multiple non-related experiments under a single authorization within a defined geographic area to develop new technologies and services while protecting incumbent services against harmful interference. This initiative allows experimental program license holders which are licensed to operate elsewhere to also use the New York City and Salt Lake City Innovation Zones. Parties must comply with each zone’s FCC-established guidelines, under the zone administrator’s guidance, and provide advanced notice of their project.

The National Science Foundation’s Platform for Advanced Wireless Research formally proposed these particular Innovation Zones, saying they “will enable experimental exploration of robust new wireless devices, communication techniques, networks, systems, and services that will revolutionize the nation's wireless ecosystem, thereby enhancing broadband connectivity, leveraging the emerging Internet of Things (IoT), and sustaining US leadership and economic competitiveness for decades to come.”

In New York City, the Innovation Zone will support COSMOS (Cloud Enhanced Open Software Defined Mobile Wireless Testbed for City-Scale Deployment). COSMOS, located in West Harlem, will be run jointly by Rutgers University, Columbia University, and New York University, in partnership with the City of New York.

In Salt Lake City, the Innovation Zone will support POWDER (A Platform for Open Wireless Data-driven Experimental Research with Massive MIMO Capabilities). POWDER, which will operate in several connected corridors of Salt Lake City, will be run jointly by the University of Utah and Rice University, in partnership with Salt Lake City.

The National Science Foundation selected smart city-research organization US Ignite and Northeastern University to form the Platform for Advanced Wireless Research Project Office, which will manage the Innovation Zones. Innovation Zones partner universities and the cities themselves will enable test bed development and deployment supported by the National Science Foundation along with a consortium of telecom and tech companies.

The FCC’s Innovation Zone initiative builds off the Commission’s 2013 rulemaking to update its experimental radio service program. The Public Notice released today by the FCC’s Office of Engineering and Technology to establish the Innovation Zones and provide details of each zone is available at:

September 19, 2019 | Permalink

Justice Department Sues Edward Snowden Over His Failure To Submit Manuscript of New Book for Pre-Publication Review

The U.S. Department of Justice is suing Edward Snowden, claiming that the publication violates the non-disclosure agreement he signed as an employee of a company that contracted with the NSA and was also an employee with the CIA. Under these agreements, employees of the government or employees of companies that contract with the government must seek releases to disclose information that they obtain during their employment. The DOJ contends that Mr. Snowden has never received such a release and did not submit the book, Permanent Record, published by Macmillan, for pre-publication release to either the CIA or the NSA for examination before allowing any other person to read the manuscript.


More here from NPR, a press release from the Department of Justice, and NBC News. 

A number of former CIA employees are suing over the agency prepublication review system, alleging that it ends by redacting too much material from manuscripts that criticize the agency or its policies. More here.

In 1980, the Supreme Court found in favor of a lower court decision that created a constructive trust composed of a former CIA employee's profits for the benefit of the government, when the employee failed to submit a manuscript for pre-publication review. See Snepp v. United States, 444 U.S. 507 (1980).


September 19, 2019 | Permalink

Wednesday, September 18, 2019

Kahn on Mask Bans as Expressions of Memory Politics in the United States

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published Mask Bans As Expressions of Memory Politics in the United States. Here is the abstract.

Mask laws have a lengthy history in the United States, one primarily, but not exclusively tied up with the Ku Klux Klan. They also are an instance of memory politics. In particular, mask bans complicate Nikolay Koposov’s distinction between narrow, self-centered memory politics (society casting itself as a victim), and broad, universalistic memory politics (society recognizing its past crimes). Sometimes, as in the Reconstruction Era, mask bans sent inculpatory or universal messages, albeit weak ones. By the 1920s, the mask bans protected Southern elites and by the 1950s, they partially exculpated the regime of segregation by focusing attention on the Klan as uncouth, cowardly, and unworthy defenders of a “progressive” South still deeply invested in segregation and White supremacy. As such, mask bans show that memory laws are sometimes used as tools of moral distancing, something also on display in recent attempts to anoint Antifa as the new Klan by “unmasking” it.

Download the article from SSRN at the link.

September 18, 2019 | Permalink

Alexander on the Legacy of Schenck and Abrams in Free Speech Jurisprudence

Larry Alexander, University of San Diego School of Law, is publishing Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence in the SMU Law Review. Here is the abstract.

In this article I compare the original clear and present danger cases, Schenck and Abrams, with the Supreme Court’s later amendment of the test in Brandenberg. I raise some problems with the latter case’s test and ask whether the Court has really made any progress.

Download the article from SSRN at the link.

September 18, 2019 | Permalink

Saturday, September 14, 2019

Ninth Circuit: Montana Statute Prohibiting Political Robocalls Violates First Amendment

In Victory Processing v. Fox, the 9th Circuit has ruled that a Montana statute prohibiting political robocalls runs afoul of the First Amendment, holding while the government may regulate the time, place, and manner of such calls, it may not regulate the content of such calls unless it demonstrates that the statute is narrowly tailored to serve a compelling state interest. Read the ruling here. 

September 14, 2019 | Permalink

Thursday, September 12, 2019

Someone Sends the EFF a Takedown Notice Regarding Its Own Graphic

The EFF responds to an amusing copyright takedown request. Patiently.

September 12, 2019 | Permalink

Sandeen and Mylly on Trade Secrets and the Right to Information @SharonSandeen @UniTurku

Sharon K. Sandeen, Mitchell Hamline School of Law, Hanken School of Economics, and Ulla-Maija Mylly, University of Turku, Faculty of Law, are publishing Trade Secrets and the Right to Information: A Comparative Analysis of EU and US Approaches to Freedom of Expression and Whistleblowing in the North Carolina Journal of Law and Technology. Here is the abstract.

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.

Download the article from SSRN at the link.

September 12, 2019 | Permalink

Tuesday, September 10, 2019

Mills and Harclerode on Privacy, Mass Intrusion and the Modern Data Breach @UFLaw

Jon L. Mills and Kelsey Harclerode, both of the University of Florida College of Law, have published Privacy, Mass Intrusion and the Modern Data Breach at 69 Fla. L. Rev. 771 (2018). Here is the abstract.

Massive data breaches have practically become a daily occurrence. These breaches reveal intrusive private information about individuals, as well as priceless corporate secrets. Ashley Madison’s breach ruined lives and resulted in suicides. The HSBC breach, accomplished by one of their own, revealed valuable commercial information about the bank and personal information about HSBC customers. The employee responsible for the breach has since been convicted of aggravated personal espionage, while third-party news outlets have been free to republish the hacked information. Some information disclosed in data breaches can serve a public purpose. The Snowden disclosures, for example, revealed sensitive government information and were also crucial to public policy debate, a significant amount of disclosed information is destructive to individuals and companies alike, and often has little, if any, public value. The conflict between publicly important disclosures and disturbing private intrusions creates a direct confrontation between freedom of expression and privacy. A full analysis of this confrontation requires assessment of the specific circumstances of breach—from the vulnerabilities present beforehand to the aftermath when the media, companies, and individuals all must cope with the information exposed. This analysis begins by evaluating the importance of information in modern society. Big data is now an inescapable part of our culture. A data breach may contain intimate details about medical conditions or national security secrets. The disclosure of either has its own kind of devastating effect. Examples of the impact of a mass data breach include the hacking of Target Corporation, Yahoo! Inc., Home Depot, Inc., Sony Corporation, Anthem Inc., HSBC Private Bank (Suisse), SA, and A dissection of these breaches reveals a common theme—the ineffectual legal system, which provides little protection or remedy for any party involved. Several factors—including the anonymity of hackers, outdated legal remedies, and free speech protections for third-party publishers—together create an uncertain and uncharted legal landscape. After evaluating the available statutory and common law remedies, this Article posits that reinvigorated private causes of action can be a starting point for developing stronger legal remedies for those damaged in a breach. The right facts and legal arguments can create new remedies out of existing legal doctrines. Further, public values on protecting privacy are in flux. More protective policies in the European Union demonstrate that privacy and free expression can coexist. Some EU policies may provide examples of legislative options. Corporate entities and individuals are at risk and are suffering real harm in a world with daily data breaches and ineffective laws. The need for new perspectives is urgent.

Download the article from SSRN at the link.

September 10, 2019 | Permalink

Voss on Obstacles to Transatlantic Harmonization of Data Privacy Law in Context @wgvoss

W. Gregory Voss, Toulouse Business School, is publishing Obstacles to Transatlantic Harmonization of Data Privacy Law in Context in volume 2019 of the Journal of Law, Technology and Policy. Here is the abstract.

Globalization seems to call for the harmonization of laws, especially in sectors affecting global business, and this is all the truer with respect to laws affecting the technology industry, with the facility of its cross-border communications networks. Data privacy law on both sides of the Atlantic benefits from common origins but eventually divergence occurred, causing compliance challenges for companies and the potential halting of cross-border data flows from the European Union to the United States. Harmonization could possibly obviate such difficulties, and there is a window of opportunity to achieve this with discussion in the United States of a potential federal data privacy law. After setting out the historical context, this study posits and details three major obstacles to full-scale transatlantic harmonization of data privacy law, from the perspective of what has become the predominant data privacy model—that of the European Union. These are: laissez-faire policy and neoliberalism in the United States (and resulting focus on self-regulation there), the lobbying power of the U.S. technology industry giants in a conducive U.S. legislative system and differing constitutional provisions on both sides of the Atlantic. Each of these elements makes attaining true harmonization more difficult, if not impossible. Nonetheless, corporate action in the United States might have given some hope of a de facto harmonization of practices, although hopes have not led to the equivalent of harmonization of laws. Political and other realities provide further context, leaving reason to be doubtful about the prospects of true transatlantic harmonization of data privacy law. Finally, certain areas for improvement in the context of U.S. legislative action are discussed.

Download the article from SSRN at the link.

September 10, 2019 | Permalink

Wednesday, September 4, 2019

Patrick File, How Journalists Make the Meaning of the 1st Amendment @JHistoryJournal @PatrickCFile

From the site Journalism History, an essay by Patrick File, University of Nevada, Reno, How Journalists Make the Meaning of the First Amendment.

September 4, 2019 | Permalink

Google and YouTube Agree To Pay $170M To FTC, New York, For Collecting Children's Data, Selling Ads

Google and Youtube is paying $170 million in penalties,  $136M to the Federal Trade Commission and $34M to the state of New York, to settle accusations against the companies that YouTube knowingly collected information about children who visited the platform. YouTube then used that data to sell ads. Such behavior would violate the Children's Online Privacy Protection Act (COPPA).  Reports surfaced about a possible settlement last week. See Politico's story here.

See the complaint here.

Here's a link to the FTC website announcing the agreement.

Here's a link to the FTC website featuring the COPPA rule.

More here from CNN Business, 

September 4, 2019 | Permalink

Tuesday, September 3, 2019

Lunney on A Natural Right To Copy

Glynn S. Lunney, Jr., Texas A&M University School of Law, has published A Natural Right to Copy. Here is the abstract.

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration. Rather, even a natural rights framework leads to a copyright regime shorter and narrower than we presently have. While I agree that copyright should be shorter and narrower, I worry that Professor Gordon conceded too much in her first step. Neither Locke’s reasoning nor Professor Gordon’s reading of it can justify a right to prohibit copying as a matter of natural law. It is not the right to prohibit copying to which we have a natural entitlement. It is the right to copy.

Download the article from SSRN at the link.

September 3, 2019 | Permalink

Perel and Elkin-Koren on Separation of Functions for AI: Restraining Speech Regulation By Online Platforms

Maayan Perel (Filmar), Netanya Academic College and Niya Elkin-Koren, University of Haifa Faculty of Law, have published Separation of Functions for AI: Restraining Speech Regulation By Online Platforms. Here is the abstract.

The Free Speech Clause of the First Amendment of the U.S. Constitution restricts government regulation of private speech. However, it does not regulate private speech. New forms of speech regulation by online platforms disrupt this constitutional framework. Platforms, such as Google, Facebook and Twitter, are responsible for mediating much of the public discourse and governing access to speech and speakers around the world. These private businesses match users and content in whatever way best benefits their commercial interests. At the same time, however, they exercise regulatory power when they filter, block and remove content, at the request of governmental agents or state actors. Consequently, platforms effectively blend law enforcement and adjudication powers, and sometimes even lawmaking powers. Courts and scholars who tackle speech regulation by plat-forms have basically relied on the well settled constitutional divide between private functions and governmental ones. To the extent that platforms exercise governmental powers in allowing or banning speech or speakers, platforms should be subject, as the argument goes, to public law principles of accountability, legitimacy, oversight, and power separation. In this paper we question this approach. As a practical matter, the public/private framework presumes that public func-tions of a private entity could be neatly separated from its standard business affairs. We argue that with the increasing use of Artificial Intelligence (AI) by platforms for content moderation, the public, law enforcement functions are integrated with the private, business functions that are driven by commercial interests. The same technical design which is used for targeted advertising and for curating personalized content is also deployed for monitoring and censoring online content. Using machine learning, the system is informed by the same labeling of users and content, and makes use of the same API, learning patterns, and software. Consequently, decisions on removal of speech, for (public) law enforcement purposes, are driven by the same data, algorithms and optimization logic which are also underlying all other functions performed by the platform. Therefore, the use of AI in content moderation calls for a fresh approach to restraining the power of platforms and securing fundamental freedoms in this environment. This paper takes a system perspective to speech regulation. It contends that the normative distinctions between public and private functions could be upheld in online content moderation, provided that these distinctions are embedded in the system design. It introduces "separation of functions", a novel approach to restraining the power of platforms while enhancing the accountability in AI driven content moderation systems. We propose to facilitate independent tools embedding public policy. These tools would run on the platforms' data, and would include their own optimization processes informed by public policy. Such separation between independent public tools and private data may enhance public scrutiny of law enforcement speech restrictions which are a traditionally exclusive public function. This functional separation may also facilitate competition among different players who may enrich the design of speech regulation and mitigate biases. Finally, we explore the implications of this approach and discuss its possible limitations.

Download the article from SSRN at the link.

September 3, 2019 | Permalink

Townley and Lubin on The International Law of Rabble-Rousing @AsafLubin @Yale @yaleisp

Hendrick Townley, Yale University, and Asaf Lubin, Yale University, Berkman Klein Center for Internet & Society, are publishing The International Law of Rabble-Rousing in volume 45 of the Yale Journal of International law Online. Here is the abstract.

Within the theater of modern information warfare there exists a particularly devious, and previously unnamed practice, which existing legal literature has so far mostly ignored. This practice we coin "rabble-rousing": the simultaneous, two-sided amplification of content in support of directly contradictory stances on controversies of national significance. The goal of these operations is to sow mistrust and aggravate divisions within a target populace. The tactic has become an especially potent weapon thanks to the widely present technologies of the cyber age including social media platforms and automated “bot” capabilities. This strategy is distinct both from the injection of “fake news” into public discourse – as it need not involve false information – and from doxing and hacking – as it has no obviously illegal component under domestic law nor does it target a single individual. This paper offers a complete account of rabble-rousing strategies and explores the extent to which international law and available technologies are well equipped in addressing the threat that these strategies pose to public world order. The paper proceeds in the following order: Part I provides a definition of rabble-rousing strategies, highlighting the ways by which they are uniquely defined from other forms of information warfare. The section then proceeds to highlight the dangers associated with the practice. Part II moves to examine whether rabble-rousing can be recognized as an internationally wrongful act under the traditional paradigms of public international law. The section looks at the prohibitions on coercive intervention and transboundary harm, the principle of sovereignty, and the human rights to self-determination and freedom of expression to determine the legality of rabble-rousing operations under international law. This Section highlights the limits of traditional interpretations of the above legal regimes and proposes how certain adaptations to the law could potentially better capture the examined phenomenon. Part III assesses current technological capabilities and proposes policy solutions, which will be necessary for states to practically defend against this activity regardless of whether or not wrongfulness can be established.

Download the article from SSRN at the link.

September 3, 2019 | Permalink