Law Commons^™

The New Pornography Wars, Julie A. Dahlstrom

Faculty Scholarship

The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. As in the “pornography wars” of the 1970s and 1980s, lawyers and activists have now turned to civil remedies and filed creative anti-trafficking lawsuits against MindGeek and third parties, like payment processing company, Visa. These lawsuits seek not only to achieve legal accountability for online sex trafficking but also to reframe a broader array of online harms as sex trafficking.

This Article explores what these new trafficking lawsuits mean for the future regulation of …

Comments Of The Cordell Institute For Policy In Medicine & Law At Washington University In St. Louis, Neil Richards, Woodrow Hartzog, Jordan Francis

Faculty Scholarship

The Federal Trade Commission—with its broad, independent grant of authority and statutory mandate to identify and prevent unfair and deceptive trade practices—is uniquely situated to prevent and remedy unfair and deceptive data privacy and data security practices. In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Cyber Mobs, Disinformation, And Death Videos: The Internet As It Is (And As It Should Be), Danielle K. Citron

Faculty Scholarship

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many …

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Danielle K. Citron, Robert Chesney

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace …

Sexual Privacy, Danielle K. Citron

Faculty Scholarship

Those who wish to control, expose, and damage the identities of individuals routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms and “up their skirts.” Such images are used to coerce people into sharing nude photographs and filming sex acts under the threat of public disclosure. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep fake” sex videos that swap people’s faces into pornography.

Each of these abuses is an invasion of sexual privacy—the behaviors, expectations, and choices that manage access to and information about …

When Law Frees Us To Speak, Danielle K. Citron, Jonathon Penney

Faculty Scholarship

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li

Faculty Scholarship

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.

The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.

This report highlights …

The Problem Isn't Just Backpage: Revising Section 230 Immunity, Danielle K. Citron, Benjamin Wittes

Faculty Scholarship

Backpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.” This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing anonymized email and photographs stripped of metadata. Under the prevailing interpretation of 47 U.S.C. § 230 (“Section 230”) of the CDA, however, Backpage would be immune from liability connected to sex trafficking even though it proactively helped sex traffickers from getting caught. No matter …

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

Zappers, Phantomware And Other Sales Suppression Software In The State Of Washington, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

Electronic sales suppression (ESS) is a fraud that has been a (prominent) feature of the North American retail business since at least 1996. The first EES case in the US dates from 1981. ESS is a global problem. Depending on the jurisdiction, and the research study consulted, ESS is estimated to be present in 34% (of Canadian), 50% (of German – two studies), and 70% (of Swedish and Slovenian) businesses. It may be the case today, that “you cannot leave home without” encountering (or participating in) ESS.

The most common types of sales suppression technology are Zappers and Phantomware programming. …

Risk And Anxiety: A Theory Of Data Breach Harms, Danielle K. Citron, Daniel Solove

Faculty Scholarship

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …

Twenty Years Of Web Scraping And The Computer Fraud And Abuse Act, Andrew Sellars

Faculty Scholarship

"Web scraping" is a ubiquitous technique for extracting data from the World Wide Web, done through a computer script that will send tailored queries to websites to retrieve specific pieces of content. The technique has proliferated under the ever-expanding shadow of the Computer Fraud and Abuse Act (CFAA), which, among other things, prohibits obtaining information from a computer by accessing the computer without authorization or exceeding one's authorized access.

Unsurprisingly, many litigants have now turned to the CFAA in attempt to police against unwanted web scraping. Yet despite the rise in both web scraping and lawsuits about web scraping, practical …

Extremist Speech, Compelled Conformity, And Censorship Creep, Danielle K. Citron

Faculty Scholarship

Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere.

These changes are less the result of voluntary market …

Four Principles For Digital Expression (You Won't Believe #3!), Danielle K. Citron, Neil Richards

Faculty Scholarship

At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a …

The Technology Requirements Of The First Electronic Monitoring Agreement In Us For Zappers, Phantomware, And Other Sales Suppression Devices, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

On August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business.

The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of …

Three Strikes For Copyright, Jessica Silbey

Faculty Scholarship

How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players …

Data Collection And The Regulatory State, Ahmed Ghappour

Faculty Scholarship

The following remarks were given on January 27, 2017 during the Connecticut Law Review’s symposium, “Privacy, Security & Power: The State of Digital Surveillance.” Hillary Greene, the Zephaniah Swift Professor of Law at the University of Connecticut School of Law, offered introductory remarks and moderated the panel. The panel included Dr. Cooper, Associate Professor of Law and Director of the Program on Economics & Privacy at Antonin Scalia Law School at George Mason University, Professor Ghappour, Visiting Assistant Professor at UC Hastings College of the Law, Attorney Lieber, Senior Privacy Policy Counsel at Google, and Dr. Wu, Professor of Law …

The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity, Danielle K. Citron, Benjamin Wittes

Faculty Scholarship

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to …

Interpretation Catalysts In Cyberspace, Rebecca Ingber

Faculty Scholarship

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making …

Payroll Tax & The Blockchain, Richard Thompson Ainsworth, Ville Viitasaari

Faculty Scholarship

Bitcoin is an application that runs on blockchain technology. Blockchain is a foundational technology that is bringing in the second era of the Internet – the era where value can be transferred, rather than just information.

Blockchain is developing along a four-stage path similar to that which TCP/IP took. Both are foundational technologies. TCP/IP brought the Internet, and eventually brought significant (transformational) technological changes in business like Amazon.com and Skype. These are changes that could not have been forecast at the beginning of the Internet age.

Blockchain is an immutable distributed ledger. It replaces the inefficient use of multiple centralized …

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Faculty Scholarship

For the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We …

Tallinn, Hacking, And Customary International Law, Ahmed Ghappour

Faculty Scholarship

Tallinn 2.0 grapples with the application of general international law principles through various hypothetical fact patterns addressed by its experts. In doing so, its commentary sections provide a nonbinding framework for thinking about sovereignty, raising important considerations for states as they begin to articulate norms to resolve the question of precisely what kinds of nonconsensual cyber activities violate well-established international laws — a question that will likely be the focus of international lawyers in this area for some time to come.

This essay focuses on one area of state practice where states are already dealing with these issues: the use …

Vat In The Gcc - Missing Trader Frauds, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

All VATs are susceptible to missing trader (MT) fraud. VATs adopted in an economic community are particularly more susceptible. The EU, for example, loses in excess of €100b annually to this fraud. Given the anticipated adoption of a European-style credit-invoice VAT in the GCC by January 1, 2018, this paper offers a technology-based solution involving the real-time tracking of taxable transactions with centrally collected (securely encrypted) data flows that are risk-analyzed by artificial intelligence (AI).

Addressing Cyber Harassment: An Overview Of Hate Crimes In Cyberspace, Danielle K. Citron

Faculty Scholarship

This short piece will take a step back and give an overhead view of the problem of cyber harassment and the destructive impact it can have on victims’ lives. Then, it will address about what the law can do to combat online harassment and how a legal agenda can be reconciled with the First Amendment. Finally, it will turn to recent changes in social media companies’ treatment of online abuse and what that might mean for our system of free expression.

Increasing The Transaction Costs Of Harassment, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Wouldn’t it be nice if the rules, agreements, and guidelines designed to prevent online harassment were sufficient to curb improper behavior? As if. Wrongdoers are not always so easily deterred. Sometimes these approaches are about as effective as attacking tanks with toothpicks.

As Danielle Citron contends in her critically important work, Hate Crimes in Cyberspace, the design of the Internet facilitates vitriol and abuse, even when it is legally, contractually, and normatively prohibited. Communicating almost effortlessly at distance—sometimes anonymously and typically with minimized body language—can heighten emotional detachment and blunt moral sensitivity. Tragically, when a mediated environment makes it …

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

Criminalizing Revenge Porn, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.