Law Commons^™

Boden Lecture: The Past’S Lessons For Today: Can Common-Carrier Principles Make For A Better Internet?, James B. Speta

Marquette Law Review

None.

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

Regulatory Sandboxes Enable Pragmatic Blockchain Regulation, Joshua Durham

Washington Journal of Law, Technology & Arts

Since blockchain technology supports digitally-native money, the centralized chokepoints that governments have traditionally targeted to regulate commerce no longer apply to our (digital) property. However, competent regulation furthers basic public policy goals and should enable responsible innovation of this promising technology. This Article discusses pragmatic policies that enable responsible innovation by cultivating regulatory expertise required to write enforceable rules. Responsible innovation is necessary because unlike the early internet, where programmers could manipulate simple colors and text on webpages, these same individuals can now create financial services applications that manipulate actual money—we are faced with an inescapable reality that more is …

Establishing The Legal Framework To Regulate Quantum Computing Technology, Kaya Derose

Catholic University Journal of Law and Technology

No abstract provided.

Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, Jon M. Garon

Marquette Law Review

The metaverse is understood to be an immersive virtual world serving as the locus for all forms of work, education, and entertainment experiences. Depicted in books, movies, and games, the metaverse has the potential not just to supplement real-world experiences but to substantially supplant them. This Article explores the rapid emergence and evolution of the Web3 technologies at the heart of the metaverse movement. Web3 itself is a paradigmatic shift in internet commerce.

Race And Regulation Podcast Episode 5 - Racial Equity And Data Privacy, Anita L. Allen

Penn Program on Regulation Podcasts

In this episode, Anita Allen, an internationally renowned expert on the philosophical dimensions of privacy and data protection law, reveals how race-neutral privacy laws in the U.S. have failed to address the unequal burdens faced online by Black Americans, whose personal data are used in racially discriminatory ways. Professor Allen articulates what she terms an African American Online Equity Agenda to guide the development of race-conscious privacy regulations that can better promote racial justice in the modern digital economy.

State Crypto Regulation: Competing Priorities Shaping Different Outcomes, John T. Bender

Seattle Journal of Technology, Environmental & Innovation Law

“Cryptomania” is approaching fever pitch. Public officials, practitioners, and investors alike are becoming convinced that what began as a thought experiment has given rise to a full-fledged movement that is here to stay. This movement could potentially transform the modern financial system as we know it.

Today, crypto assets and related platforms are increasingly being adopted to store, secure, and transmit massive amounts of monetary value worldwide. Enforcement agencies like the Securities and Exchange Commission and the Commodity Futures and Trading Commission have ventured into the fray by employing existing legal regimes to regulate in this new frontier. At the …

Small Business Cybersecurity: A Loophole To Consumer Data, Matthew R. Espinosa

The Scholar: St. Mary's Law Review on Race and Social Justice

Small businesses and small minority owned businesses are vital to our nation’s economy; therefore legislation, regulation, and policy has been created in order to assist them in overcoming their economic stability issues and ensure they continue to serve the communities that rely on them. However, there is not a focus on regulating nor assisting small businesses to ensure their cybersecurity standards are up to par despite them increasingly becoming a victim of cyberattacks that yield high consequences. The external oversight and assistance is necessary for small businesses due to their lack of knowledge in implementing effective cybersecurity policies, the fiscal …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Vanderbilt Journal of Transnational Law

Digital sovereignty-the exercise of control over the internet-is the ambition of the world's leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy's dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government's worst ills from foreign intrusion. Assertions of digital …

Distributed Governance Of Medical Ai, W. Nicholson Price Ii

SMU Science and Technology Law Review

Artificial intelligence (AI) has the potential to democratize expertise in medicine, bring expertise previously limited to specialists to a variety of health-care settings. But AI can easily falter, and making sure that AI works well across that variety of settings is a challenging task. Centralized governance, such as review by the Food and Drug Administration, can only do so much, since system performance will depend on the particular health-care setting and how the AI system is integrated into setting-specific clinical workflows. This Essay presents the need for distributed governance, where some oversight tasks are undertaken in localized settings. It points …

The Regulation Of Foreign Platforms, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.

This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and …

Securities Law: Overview And Contemporary Issues, Neal Newman, Lawrence J. Trautman

Faculty Scholarship

This is not your grandfather’s SEC anymore. Rapid technological change has resulted in novel regulatory issues and challenges, as law and policy struggles to keep pace. The U.S. Securities and Exchange Commission (SEC) reports that “the U.S. capital markets are the deepest, most dynamic, and most liquid in the world. They also have evolved to become increasingly fast and extraordinarily complex. It is our job to be responsive and innovative in the face of significant market developments and trends.” With global markets increasingly interdependent and interconnected and, “as technological advancements and commercial developments have changed how our securities markets operate, …

Regulating The Digital Resonance, Hassan Salman

Upper Level Writing Requirement Research Papers

No abstract provided.

Reviving Negotiated Rulemaking For An Accessible Internet, Julie Moroney

Michigan Law Review

Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking …

Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas

Michigan Technology Law Review

Policymakers are faced with a vexing problem: how to increase competition in a tech sector dominated by a few giants. One answer proposed and adopted by regulators in the United States and abroad is to require large platforms to allow consumers to move their data from one platform to another, an approach known as data portability. Facebook, Google, Apple, and other major tech companies have enthusiastically supported data portability through their own technical and political initiatives. Today, data portability has taken hold as one of the go-to solutions to address the tech industry’s competition concerns.

This Article argues that despite …

The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz

Michigan Technology Law Review

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play …

Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro

Touro Law Review

No abstract provided.

Seeing (Platforms) Like A State: Digital Legibility And Lessons For Platform Governance, Neil Chilson

Catholic University Journal of Law and Technology

The growing backlash against Big Tech companies is a symptom of digital technology increasing the world’s legibility. James C. Scott’s book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, explores how past governments responded to increased legibility – for good and for ill. This article shows how Scott’s historical lessons can guide governments and tech platforms as they seek to improve the human condition online.

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Administrative Law In The Automated State, Cary Coglianese

All Faculty Scholarship

In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated state were …

Symmetry And (Network) Neutrality, Tejas N. Narechania

Michigan Law Review Online

In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, …

A Coffee Break For Bitcoin, Margaret Ryznar

Indiana Law Journal

For many, the appeal of bitcoin is in its detachment from government regulation. However, the Coffee bonding theory, which initially arose in the context of foreign stocks, suggests certain benefits of regulation for bitcoin, including increased legitimacy. By invoking the Coffee bonding theory, this Article offers another perspective on the regulation of bitcoin.

Net Neutrality: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Net neutrality is the idea that internet services or broadband providers should treat all content streaming through their systems the same, and providers who use their discretion to create “fast lanes,” block particular content, or throttle (slow down) internet speeds are not in keeping with how the internet ought to work.

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

Web Of Lives: How Regulating The Dark Web Can Combat Online Human Trafficking, Christopher Campbell

Journal of the National Association of Administrative Law Judiciary

This article argues that one of the ways to appropriately fight online human trafficking is through governmental regulation of the Dark Web. Specifically, this article argues that a new Attaching Criminal Dark Web Statute is the best method to combat human trafficking because it can incentivize prosecutors to use current human trafficking statutes to prosecute traffickers. This proposal can deter traffickers from enslaving people. Additionally, this article shows the evolution of online human trafficking laws, investigation, and prosecution (Section II); demonstrates why current and proposed laws do not effectively address the online human trafficking issue (Sections III and IV); introduces …

Privacy Statements Under The Gdpr, Mike Hintze

Seattle University Law Review

The need to include specific types of information in a privacy statement is a GDPR compliance obligation that does not get as much attention as some other GDPR requirements. Perhaps that is because privacy statements have been much maligned in recent years. They are too long and full of legalese. Nobody reads them. They are part of a notice and consent approach to privacy that puts an unrealistic burden on consumers to make informed choices. But despite these well-known criticisms, the GDPR doubles down on privacy statements. In fact, gauging by the roughly fourfold increase in privacy statement requirements compared …

Confiding In Con Men: U.S. Privacy Law, The Gdpr, And Information Fiduciaries, Lindsey Barrett

Seattle University Law Review

In scope, ambition, and animating philosophy, U.S. privacy law and Europe’s General Data Protection Regulation are almost diametric opposites. The GDPR’s ambitious individual rights, significant prohibitions, substantive enforcement regime, and broad applicability contrast vividly with a scattershot U.S. regime that generally prioritizes facilitating commerce over protecting individuals, and which has created perverse incentives for industry through anemic enforcement of the few meaningful limitations that do exist. A privacy law that characterizes data collectors as information fiduciaries could coalesce with the commercial focus of U.S. law, while emulating the GDPR’s laudable normative objectives and fortifying U.S. consumer privacy law with a …

The Gdpr: It Came, We Saw, But Did It Conquer?, Leila Javanshir

Seattle University Law Review

On February 1, 2019, the Seattle University Law Review held its annual symposium at the Seattle University School of Law. Each year, the Law Review hosts its symposium on a topic that is timely and meaningful. This year, privacy and data security professionals from around the globe gathered to discuss the current and future effects of the General Data Protection Regulation (GDPR) that was implemented on May 25, 2018. The articles and essays that follow this Foreword are the product of this year’s symposium.

Taxation Of Automation And Artificial Intelligence As A Tool Of Labour Policy, Vincent Ooi, Glendon Goh

Centre for AI & Data Governance

Rapid developments in automation technology pose a risk of massdisplacement of human labour, resulting in the need to support and retraindisplaced workers (a negative externality). We propose an “automation tax”that would slow the adoption of automation technology in appropriatecircumstances, giving workers and social support systems time to adapt. Thiscould be easily implemented through changes to the existing schedular systemof depreciation/ capital allowances, reducing the uncertainty of its applicationand implementation costs. Such a system would be flexible enough to keepup with rapid technological developments. Two main dimensions may beadjusted to produce intended distortionary effects: 1) accelerated depreciation,and 2) bonus depreciation. While …