Law Commons^™

Data Collection And The Regulatory State, Hillary Green, James Cooper, Ahmed Ghappour, Felix Wu

Articles

The following remarks were given on January 27, 2017 during the Connecticut Law Review's symposium, "Privacy, Security & Power: The State of Digital Surveillance."

In Re Akhbar Beirut & Al Amin, Monica Hakimi

Articles

On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal's proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri. The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist's freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.

The Commercial Difference, Felix T. Wu

Articles

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to …

Are Trump's Attacks On The Media Adversely Affecting Public Opinion?, Leonard M. Niehoff

Articles

Both during the election cycle and as president of the United States, Donald Trump has enthusiastically and aggressively attacked the media. On Twitter, in speeches, and at rallies he has repeatedly deployed his favorite “f words” against mainstream broadcast, print, and online news sources: “fake,” “fraudulent,” “failing,” and (phonetically) “phony.” Some attacks have been personal to individual journalists, some have been more institutionally focused, and some have been made in contexts that appeared to create physical risk to reporters who were present. But whatever the variation in lavors, the frequency of the attacks has remained constant. Indeed, Trump has devoted …

Lessons Learned Too Well: Anonymity In A Time Of Surveillance, A. Michael Froomkin

Articles

It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator's identity. But online anonymity-one of the two most important tools that protect online communicative freedom-is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names.

This Article traces …

Cybersecurity Stovepiping, David Thaw

Articles

Most readers of this Article probably have encountered – and been frustrated by – password complexity requirements. Such requirements have become a mainstream part of contemporary culture: "the more complex your password is, the more secure you are, right?" So the cybersecurity experts tell us… and policymakers have accepted this "expertise" and even adopted such requirements into law and regulation.

This Article asks two questions. First, do complex passwords actually achieve the goals many experts claim? Does using the password "Tr0ub4dor&3" or the passphrase "correcthorsebatterystaple" actually protect your account? Second, if not, then why did such requirements become so widespread? …

Bankrupt Marketplace: First Amendment Theory And The 2016 Presidential Election, Leonard M. Niehoff

Articles

In this article I advance two arguments. The first is that 2016 was a particularly important year for freedom of speech and the press, although not for conventional reasons. The second is that hte events of 2016 revealed that one of the essential components of our democracy - the central role that free expression plays in the democratic process - is in a state of serious dysfunction, if not crisis.