Law Commons^™

What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister

Brooklyn Journal of Corporate, Financial & Commercial Law

Fast-approaching changes to European data privacy law will have consequences around the globe. Historically, despite having dramatically different approaches to data privacy and data protection, the European Union and the United States developed a framework to ensure that the highspeed freeway that is transatlantic data transfer moved uninterrupted. That framework was overturned in the wake of revelations regarding U.S. surveillance practices, and amidst skepticism that the United States did not adequately protect personal data. Further, the European Union enacted the General Data Protection Regulation (GDPR), a sweeping overhaul of the legal data protection landscape that will take effect in May …

Fake News: No One Is Liable, And That Is A Problem, Emma M. Savino

Buffalo Law Review

No abstract provided.

The Fragility Of The Free American Press, Ronnell Andersen Jones, Sonja R. West

Northwestern University Law Review

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on …

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

All Faculty Scholarship

Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by the courts …

Algorithmic Jim Crow, Margaret Hu

Margaret Hu

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

How Elonis Failed To Clarify The Analysis Of "True Threats" In Social Media Cases And The Subsequent Need For Congressional Response, Jessica L. Opila

Michigan Telecommunications & Technology Law Review

Social media and other internet communications have altered the way people communicate with one another, including the way people threaten one another. In 2015, the United States Supreme Court decided Elonis v. United States, which imposed a heightened mental state requirement for federal prosecutions of threats issued in interstate commerce. Although the statute, 18 U.S.C. § 875(c), has no mental state requirement, the Supreme Court held that, consistent with the principles of criminal law, only those with guilty minds should be convicted and thus some showing of subjective intent is required. The opinion did not name the requisite mental …

Free Speech And The Confluence Of National Security And Internet Exceptionalism, Alan K. Chen

Fordham Law Review

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of two …

The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, Danielle Keats Citron, Benjamin Wittes

Fordham Law Review

Section 230 is overdue for a rethinking. If courts do not construe the scope of federal immunity to avoid injustice, we argue, Congress should amend the law. This is not to discount the important role that the immunity provision has played over the past twenty years. Far from it. Section 230 immunity has enabled innovation and expression beyond the imagination of the operators of early bulletin boards and computer service providers the provision was designed to protect. But its overbroad interpretation has left victims of online abuse with no leverage against site operators whose business models facilitate abuse. This state …

The Role Of Internet Intermediaries In Tackling Terrorism Online, Raphael Cohen-Almagor

Fordham Law Review

Gatekeeping is defined as the work of third parties “who are able to disrupt misconduct by withholding their cooperation from wrongdoers.”1 Internet intermediaries need to be far more proactive as gatekeepers than they are now. Socially responsible measures can prevent the translation of violent thoughts into violent actions. Designated monitoring mechanisms can potentially prevent such unfortunate events. This Article suggests an approach that harnesses the strengths and capabilities of the public and private sectors in offering practical solutions to pressing problems. It proposes that internet intermediaries should fight stringently against terror and further argues that a responsible gatekeeping approach is …

Terrorist Advocacy And Exceptional Circumstances, David S. Han

Fordham Law Review

This Article proceeds as follows. Part I discusses the harmful effects of terrorist advocacy and outlines the present doctrinal treatment of such speech. Part II discusses the issue of exceptional circumstances and highlights the two approaches courts might take to account for them: applying strict scrutiny to the case at hand or broadly reformulating the First Amendment’s doctrinal boundaries. Part III sets forth my central thesis: courts should adhere to case-by-case strict scrutiny analysis, rather than broad doctrinal reformulation, as the initial means of accounting for exceptional circumstances with respect to terrorist advocacy. This approach reflects the vital importance of …

Free Speech And National Security Bootstraps, Heidi Kitrosser

Fordham Law Review

It is troubling that courts treat administrative designations—specifically, both FTO determinations and information classification—as bootstraps by which to yank speech restrictions from the clutches of probing judicial scrutiny. This Article builds on existing scholarly critiques to identify and examine the common thread of national security bootstrapping that runs through both sets of cases. The hope is that in so doing, some greater light may be shed both on the cases themselves and, more broadly, on the costs and benefits of judicial deference to executive national security claims where civil rights and civil liberties are at stake.

Entertaining Satan: Why We Tolerate Terrorist Incitement, Andrew Koppelman

Fordham Law Review

Words are dangerous. That is why governments sometimes want to suppress speech. The law of free speech reflects a settled decision that, at the time that law was adopted, the dangers were worth tolerating. But people keep dreaming up nasty new things to do with speech. Recently, the Islamic State of Iraq and Syria (ISIS) and other terrorist organizations have employed a small army of Iagos on the internet to recruit new instruments of destruction. Some of what they have posted is protected speech under present First Amendment law. In response, scholars have suggested that there should be some new …

Government Speech And The War On Terror, Helen Norton

Fordham Law Review

This Article examines how the government’s speech in the War on Terror can threaten free speech, equal protection, and due process values. It focuses primarily on the constitutional harms threatened by the government’s speech itself (what some call a form of “soft law”), rather than on situations in which the government’s speech may be evidence of a constitutionally impermissible motive for its “hard law” actions.

Terrorizing Advocacy And The First Amendment: Free Expression And The Fallacy Of Mutual Exclusivity, Martin H. Redish, Matthew Fisher

Fordham Law Review

Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits the unprotected pathologies of a true threat. This Article explains why this new category confounds existing First Amendment doctrine and details a proposed model for how the doctrine should be reshaped.

The Internet As Marketplace Of Madness— And A Terrorist’S Best Friend, Thane Rosenbaum

Fordham Law Review

The panel I was assigned to, for this distinguished gathering of scholars at Fordham Law School, where I had previously been a professor for twentythree years, was given the name, “Caution Against Overreaching.” Overreaching and the caution it occasions, in this case, refer to the First Amendment, a uniquely American absolutist, legalistic obsession. For many who fixate on such matters, the government must never be allowed to trample upon the unfettered free speech rights guaranteed under America’s first, and most favorite, Amendment.

Algorithmic Jim Crow, Margaret Hu

Fordham Law Review

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Wild Westworld: Section 230 Of The Cda And Social Networks’ Use Of Machine-Learning Algorithms, Catherine Tremble

Fordham Law Review

This Note argues that Facebook’s services—specifically the personalization of content through machine-learning algorithms—constitute the “development” of content and as such do not qualify for § 230 immunity. This Note analyzes the evolution of § 230 jurisprudence to help inform the development of a revised framework. This framework is guided by congressional and public policy goals and creates brighter lines for technological immunity. It tailors immunity to account for user data mined by ISPs and the pervasive effect that the use of that data has on users—two issues that courts have yet to confront. This Note concludes that under the revised …

Terrorist Incitement On The Internet, Alexander Tsesis

Fordham Law Review

I organized this symposium to advance understanding of how terrorist communications drive and influence social, political, religious, civil, literary, and artistic conduct. Viewing terrorist speech through wide prisms of law, culture, and contemporary media can provide lawmakers, adjudicators, and administrators a better understanding of how to contain and prevent the exploitation of modern communication technologies to influence, recruit, and exploit others to perpetrate ideologically driven acts of violence. Undertaking such a multipronged study requires not only looking at the personal and sociological appeals that extreme ideology exerts but also considering how to create political, administrative, educational, and economic conditions to …

Terrorists Are Always Muslim But Never White: At The Intersection Of Critical Race Theory And Propaganda, Caroline Mala Corbin

Fordham Law Review

When you hear the word “terrorist,” who do you picture? Chances are, it is not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of …

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Fordham Law Review

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Terror On Your Timeline: Criminalizing Terrorist Incitement On Social Media Through Doctrinal Shift, Zachary Leibowitz

Fordham Law Review

The United States faces a barrage of threats from terrorist organizations on a daily basis. The government takes some steps to prevent these threats from coming to fruition, but not much is being done proactively. Any person can log into a social media account to preach hate and incite violence against the United States and its citizenry, and sometimes these words result in action. When speakers are not held accountable, they can continue to incite the masses to violent action across the United States. This Note proposes a new incitement doctrine to prevent these speakers from being able to spread …

The Do-Not-Call List: Will It Survive?, Chris Kannady

Oklahoma Journal of Law and Technology

No abstract provided.

Cyberspace…The Final Frontier: How The Communications Decency Act Allows Entrepreneurs To Boldly Go Where No Blog Has Gone Before, Aaron Jackson

Oklahoma Journal of Law and Technology

No abstract provided.

Can Schools Use Nanotechnology To Prevent Cell Phones From Ringing, Sarah C. Boyer

Oklahoma Journal of Law and Technology

No abstract provided.

Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee

Maine Law Review

Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which the First …

Personal Data Protection Act 2012: Understanding The Consent Obligation, Man Yip

Research Collection Yong Pung How School Of Law

The Personal Data Protection Act 20121 (“PDPA”) provides the baseline standards of protection of personal data and works in tandem with existing law to provide comprehensive protection. The birth of the legislation clearly signals Singapore’s commitment to protect the collection, use and disclosure of personal data in the age of big data and its awareness of the importance of such protection in strengthening Singapore’s position as a leading commercial hub. Significantly, the PDPA protection model balances “both the rights of individuals to protect their personal data” against “the needs of organisations to collect, use or disclose personal data for legitimate …

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."

Comments To The Federal Trade Commission On The Can-Spam Rule Review, 16 C.F.R. Part 316, Project No. R711010, Roger Allan Ford

Law Faculty Scholarship

These comments respond to the Federal Trade Commission’s request for public comment on the CAN-SPAM Rule, 16 C.F.R. Part 316.

The CAN-SPAM Act set a minimum baseline for consumer protections that senders of unsolicited commercial email must respect. These protections have been largely effective at giving consumers the ability to manage how a large group of companies uses their email addresses for marketing. At the same time, the Act has had little effect on the volume of unsolicited commercial email or on the amount of email sent by scammers and fraudsters. The Act and its implementing Rule, then, have been …

Mass Communication Law And Policy Research And The Values Of Free Expression, Edward L. Carter

Faculty Publications

Mass communication law and policy research, including on values and theory of freedom of expression, has played an important role in Journalism & Mass Communication Quarterly for decades. Mass communication law research in Quarterly reached a high point with a special issue on the First Amendment in 1992 and numerous articles in the decade that followed. A relationship is explored between First Amendment theory and structural archetypes of constitutional argument. Future research could focus on international law and contemporary challenges involving technology, surveillance and changes in democratic citizenship.

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.