Law Commons^™

Juridical Discourse For Platforms, Thomas E. Kadri

Scholarly Works

Facebook founder Mark Zuckerberg has created a private “Supreme Court,” or so he says. Since 2021, his company’s Oversight Board has issued verdicts on a smattering of Facebook’s decisions about online speech. Cynics frame the Board as a Potemkin village, but defenders invoke analogies to separation of powers to claim that this new body empowers the public and restrains the company. Some are even calling for a single “platform supreme court” to rule over the entire industry.

Juridical discourse for platforms is powerful, but it can also be deceptive. This Response explores how juridical discourse has legitimized and empowered Facebook’s …

The New Editors: Refining First Amendment Protections For Internet Platforms, Mailyn Fidler

Law Faculty Scholarship

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting. First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally …

Transnational Government Hacking, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Precarious Position Of The Fourth Estate In Trumptopia: The Role Of Popular Culture And The Law In Protecting Media Freedom, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

Speech Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …

Social Media, Manipulation, And Violence, Allyson Haynes Stuart

South Carolina Journal of International Law and Business

No abstract provided.

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Defamation And Privacy In The Social Media Age: What Would Justice Brennan Think?, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …

Modularity Theory And Internet Regulation, Christopher S. Yoo

All Faculty Scholarship

Modularity is often cited as one of the foundations for the Internet’s success. Unfortunately, academic discussions about modularity appearing in the literature on Internet policy are undertheorized. The persistence of nonmodular architectures for some technologies underscores the need for some theoretical basis for determining when modularity is the preferred approach. Even when modularity is desirable, theory must provide some basis for making key design decisions, such as the number of modules, the location of the interfaces between the modules, and the information included in those interfaces.

The literature on innovation indicates that modules should be determined by the nature of …

Innovations In Mobile Broadband Pricing, Daniel Lyons

Daniel Lyons

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

Regulating Interconnection (Lightly!), Daniel A. Lyons

Daniel Lyons

No abstract provided.

Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio

Giancarlo Francesco Frosio

In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift. Again, at the time of the British …

The Constitutional Considerations Of Multiple Media Ownership Regulation By The Federal Communications Commission, Jon L. Mills, John Moynahan, Richard Perlini, George Mcclure

Jon L. Mills

Promoting the dissemination of diverse ideas with a minimum of governmental interference is the goal of the first amendment in protecting free press and free media. This goal is implicit in the public interest mandate of the Communications Act of 1934. A precise balance between restraint and diversity in first amendment policy appears impossible, but the process of decision should reflect both, with deference to restraint where possible. The Federal Communication Commission's Order in Docket 18110 failed to strike such a balance; any future action regarding cross-ownership of broadcast stations by newspapers would benefit by an increased recognition of the …

Constitutional Law - Due Process Clause - The Due Process Clause Of The Fifth Amendment Requires Fair Notice Of What Violates Federal Indecency Standards, Jon L. Mills

Jon L. Mills

Casenote regarding Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012).

Toward A New Language Of Legal Drafting, Matthew Roach

Matthew Roach

Lawyers should write in document markup language just like web developers, digital publishers, scientists, and almost everyone else.

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Overestimating Wireless Demand: Policy And Investment Implications Of Upward Bias In Mobile Data Forecasts, J. Armand Musey Cfa, Aalok Mehta

J. Armand Musey, CFA

In this paper, we present evidence of persistent errors in projections of wireless demand and examine the implications for wireless policy and investment. Mobile demand projections are relied upon in academic and government research and used for critically important telecommunications policy decisions, both domestically and internationally. The Federal Communications Commission, for example, used such projections to estimate a 275 MHz spectrum shortage by 2014 and featured such estimates in the U.S. National Broadband Plan as evidence for allocating additional spectrum for cellular services. The International Telecommunications Union Radiocommunication Sector endorsed in 2006 an estimate of a 1,280- to 1,720-MHz spectrum …

Right-Sizing Spectrum Auction Licenses: The Case For Smaller Geographic License Areas In The Tv Broadcast Incentive Auction, William H. Lehr Phd, J. Armand Musey Cfa

J. Armand Musey, CFA

The wireless sector is a key contributor to economic activity and growth. Over the next several years, wireless service providers are expected to invest $25 to $53 billion upgrading and expanding their networks to deploy 4G mobile broadband across the nation. All told, wireless broadband investment and the services and innovation supported by such investment are expected to add between $259 and $355 billion to US GDP each year through 2017. The Federal Communications Commission ("Commission" or "FCC") is currently designing the largest ever auction of terrestrial wireless spectrum, currently planned for late 2014 (the "Incentive Auction"). The purpose is …

Beyond Net Neutrality: International Examples Enabling Innovation And Consumer Choice In The Mobile Internet Ecosystem, Daniel Lyons

Daniel Lyons

The FCC’s new Open Internet rules seek to limit interference by broadband service providers in markets for Internet-based content and applications. But to do so, the rules may significantly reduce the amount of innovation possible in the broadband service market. An aggressive interpretation of the rules suggests that broadband providers are generally required to offer customers access to all lawful Internet traffic, or none at all. This paper explores the way in which this all-or-nothing homogenization of the American broadband product differs from innovative non-net-neutral practices that are taking root in other countries, particularly in mobile markets. Around the world, …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

Richard Warner

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese

J. Armand Musey, CFA

Before the Commission finalizes the selection of a vendor for the Local Number Portability Administrator (“LNPA”) contract, the Commission should take this opportunity to reconsider the future role of the number portability system and of the LNPA in relation to market competition, public safety and the IP technology transition. The functionality of today’s LNP platform extends well beyond providing routine number porting services between telecom carriers. It has evolved into a significant component in the greater ecosystem of telecommunications competition, public safety and technological evolution. As a result, any changes to the LNPA now will have broader and evolving public …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

All Faculty Scholarship

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

This paper will examine new models for the carriage of Internet traffic with an eye toward providing insights on how the interconnection process has changed and what positive and negative consequences have resulted. Internet Service Provider (“ISP”) interconnection used to constitute a cooperative undertaking, but now it increasingly requires difficult and protracted negotiations between ventures that consider themselves adversaries in a winner take all transaction. The paper concludes that new commercial arrangements, such as paid peering, can achieve mutually beneficial outcomes. However, the paper also identifies instances where migration from traditional interconnection arrangements can harm consumers by reducing some of …