Law Commons^™

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

Publications

No abstract provided.

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Comment: Secondary Effects: The First Amendment And Defective 3d Firearm Files, Liam Casey

Golden Gate University Law Review

Three-dimensional printing brought the factory inside the home, leaving behind traditional government oversight and industry safeguards common to the free market. Anyone in the world with a 3D printer can produce a functional firearm, and most adult citizens in the United States. may do so legally. While 3D printing has demonstrated its utility, novel issues such as commercial liability and broad access to computer code for 3D-printable guns remain in the technology’s legal periphery.

This Comment analyzes Washington v. Defense Distributed, in which the United States Department of State attempted to prevent an online organization, Defense Distributed, from posting …

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

The First Amendment And Data Privacy: Securing Data Privacy Laws That Withstand Constitutional Muster, Kathryn Peyton

Pepperdine Law Review

Given the growing ubiquity of digital technology’s presence in people’s lives today, it is becoming increasingly more necessary to secure data privacy protections. People interact with technology constantly, ranging from when engaging in business activates, such as corresponding through emails or doing research online, to more innocuous activities like driving, shopping, or talking with friends and family. The advances in technology have made possible the creation of digital trails whenever someone interacts with such technology. Companies aggregate data from data trails and use predictive analytics to create detailed profiles about citizen-consumers. This information is typically used for profit generating purposes. …

The Legal Implications Of Synthetic And Manipulated Media, Thomas E. Kadri

Popular Media

Ahead of the U.S. 2020 presidential election, the Carnegie Endowment for International Peace convened more than 100 experts from three dozen organizations inside and outside Silicon Valley in private meetings to help address the challenges that synthetic and manipulated media pose for industry, government, and society more broadly. Among other things, the meetings developed a common understanding of the potential for synthetic and manipulated media circulated on technology platforms to disrupt the upcoming presidential election, generated definitions of “inappropriate” election-related synthetic and manipulated media that have informed platform content moderation policies, and equipped platforms with playbooks of effective and ethical …

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Scholarly Works

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support …

Social Media And The Government: Why It May Be Unconstitutional For Government Officials To Moderate Their Social Media, Alex Hadjian

Loyola of Los Angeles Law Review

No abstract provided.

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

Articles, Book Chapters, & Popular Press

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

Panel 1: Robotic Speech And The First Amendment, Bruce E. H. Johnson, Helen Norton, David Skover

Publications

Moderator: Professor Gregory Silverman.

Book discussed: Ronald L. Collins & David M. Skover, Robotica: Speech Rights and Artificial Intelligence (Cambridge Univ. Press 2018).

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

The Amplified Need For Supreme Court Guidance On Student Speech Rights In The Digital Age, William Calve

St. Mary's Law Journal

Abstract forthcoming.

The Shaky Ground Of The Right To Be Delisted, Miquel Peguera

Miquel Peguera

It has long been discussed whether individuals should have a “right to be forgotten” online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v AEPD, the Court of Justice of the European Union addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results, in searches made on the basis of their name. It found that they do have this right – which can be best described as a “right to be …

The Doctrinal Toll Of "Information As Speech", Kyle Langvardt

Kyle Langvardt

The courts over the past two decades have reached a near-consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake whole other spheres of non-expressive economic activity in the Internet's image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a …

Can A One Star Review Get You Sued? The Right To Anonymous Speech On The Internet And The Future Of Internet “Unmasking” Statutes, Jesse D. Lively

Jesse D Lively

This Comment argues that the Supreme Court of Virginia should first reverse the Virginia Court of Appeal’s decision when it hears the Yelp case later this year. Secondly, the court hold that the Virginia statute for identifying persons communicating anonymously over the Internet violates the First Amendment's required showing of merit on both law and facts before a subpoena duces tecum to identify an anonymous speaker can be enforced. Lastly, it should adopt a new “unveiling standard” similar to the standards used in either Dendrite or Cahill. Part II examines the jurisprudential history of identifying anonymous Internet speakers in defamation …

Digital Medicine, The Fda, And The First Amendment, Adam Candeub

Georgia Law Review

Digital medicine might transform healthcare more fundamentally than the introduction of anesthesia or germ basis theory of disease. Already, tens of thousands of "medical apps" are available for smartphones. These computer applications can measure blood pressure, pulse, lung function, oxygenation level, sugar level, breathing rate and body temperature-and can even diagnose skin cancer, analyze urine, and take an echocardiogram. In fall 2013, the Federal Drug Administration (FDA) asserted regulatory authority over mobile medical applications and other digital medical services, threatening to chill, if not, destroy this innovation. This Article argues that the FDA stands on firm legal ground regulating medical …

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth Rowe

Elizabeth A Rowe

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

The Replicator And The First Amendment, Kyle Langvardt

Kyle Langvardt

As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years—sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights. This paper is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review …

“Can I Profit From My Own Name And Likeness As A College Athlete?” The Predictive Legal Analytics Of A College Player’S Publicity Rights Vs. First Amendment Rights Of Others, Roger M. Groves

Roger M. Groves

Two federal court decisions during 2013 have changed the game for college students versus the schools, the NCAA and video game makers. This article explores whether for the first time in history these athletes can profit from their own name and likeness and prevent others from doing so. But those cases still leave many untested applications to new facts – facts that the courts have not faced. Particularly intriguing is how 21st Century technology will apply to this area in future litigation. No publicity rights case or article to date has explored the application of predictive analytics, computer programs, algorithms, …

Bare Necessities: The Argument For A “Revenge Porn” Exception In Section 230 Immunity, Allison L. Tungate

Allison L Tungate

No abstract provided.

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

A. Michael Froomkin

US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate – a rate that is only set to increase. This article proposes ‘Privacy Impact Notices’ (PINs) — modeled on Environmental Impact Statements — as an initial solution to this problem. Data collection in public (and in the home via public spaces) resembles an externality imposed on the person whose privacy is reduced involuntarily; it can also be seen as a market failure caused by an information asymmetry. Current doctrinal legal tools available to respond to …

Omnipresent Student Speech And The Schoolhouse Gate: Interpreting Tinker In The Digital Age, Watt L. Black Jr.

Watt Lesley Black Jr.

This paper focuses primarily on federal circuit level decisions regarding public school district's ability to discipline students who engage in electronic speech while off-campus and not involved in school activities. Particular attention is paid to the question of whether and how appeals courts have been willing to apply the "material and substantial disruption" standard from the Supreme Court's 1969 Tinker v. Des Moines decision to speech occurring off-campus. The paper, which is targeted toward both legal scholars and school administrators, draws together the common threads from the various circuits and weaves them into a set of guidelines for school administrators …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

A Comprehensive Approach To Bridging The Gap Between Cyberbullying Rules And Regulations And The Protections Offered By The First Amendment For Off-Campus Student Speech, Vahagn Amirian

Vahagn Amirian

No abstract provided.