Law Commons^™

Exploring Parents' Knowledge Of Dark Design And Its Impact On Children's Digital Well-Being, Claire Bessant, Luei Lin Ong, Laurel Aynne Cook, Mariea Grubbs Hoy, Beatriz Pereira, Alexa Fox, Emma Nottingham, Stacey Steinberg, Pingping Gan

UF Law Faculty Publications

Dark design (also known as deceptive design; Colin et al., 2018 and dark patterns; Mathur et al., 2019) is evidenced by “a user interface carefully crafted to trick users into doing things they might not otherwise do” (Brignull, 2022; page 1). Much dark design is constructed with monetization as the primary goal- even in spaces without ecommerce design (e.g., free-to-play apps representing >95% of all mobile apps; Fitton et al. 2021). Many recent dark design strategies are also oriented towards collecting user information. Concerns about children’s vulnerability to inappropriate online marketing and economic fraud, and the impact of organisational data …

Beware The Slender Man: Intellectual Property And Internet Folklore, Cathay Y. N. Smith

Florida Law Review

Internet folklore is created collaboratively within Internet communities—through memes, blogs, video games, fake news, found footage, creepypastas, art, podcasts, and other digital mediums. The Slender Man mythos is one of the most striking examples of Internet folklore. Slender Man, the tall and faceless monster who preys on children and teenagers, originated on an Internet forum in mid-2009 and quickly went viral, spreading to other forums and platforms online. His creation and development resulted from the collaborative efforts and cultural open-sourcing of many users and online communities; users reused, modified, and shared each other’s Slender Man creations, contributing to his development …

The Song Remains The Same: What Cyberlaw Might Teach The Next Internet Economy, Kevin Werbach

Florida Law Review

The next stage of the digital economy will involve trillions of networked devices across every industry and sphere of human activity: The Internet of the World. Early manifestations of this evolution through on-demand services such as Uber and Airbnb raise a host of serious legal questions. The stage seems set for a decisive battle between regulation and innovation. Yet this perception is mistaken. In the end, the emerging businesses will welcome government engagement, and regulatory actors will accept creative solutions to achieve their goals. Why expect such a resolution? Because the same story played out twenty years ago, in the …

#I🔫U: Considering The Context Of Online Threats, Lyrissa Barnett Lidsky, Linda Riedemann Norbutt

UF Law Faculty Publications

The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker's innocent words to be misunderstood People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. …

Sharenting: Children's Privacy In The Age Of Social Media, Stacey B. Steinberg

UF Law Faculty Publications

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age.

Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These …

Cybermedicine: The Benefits And Risks Of Purchasing Drugs Over The Internet, David Mills

Journal of Technology Law & Policy

In today's rapidly changing world of e-commerce, almost anything can be bought over the Internet and delivered right to your front door. Virtually every day there is news of yet another company selling some type of product online. Included in this barrage of products is prescription medication. Not only is it possible to order prescription medication over the Internet, in some cases it is not necessary to be examined, or even to consult with a physician. ~ To some, this new type of "cybermedicine" is an affront to traditional medicine, as well as potentially dangerous to consumers. In addition, the …

Internet Payment Blockades, Annemarie Bridy

Florida Law Review

Internet payment blockades are an attempt to enforce intellectual property rights by “following the money” that flows to online merchants who profit from piracy and counterfeiting. Where corporate copyright and trademark owners failed in the legislature and the judiciary to create binding public law requiring payment processors like MasterCard and Visa to act as intellectual property enforcers, “non-regulatory” intervention from the executive branch secured their cooperation as a matter of private ordering. The resulting voluntary best practices agreement prescribes a notice-and-termination protocol that extends the reach of U.S. intellectual property law into cyberspace, to merchants operating “foreign infringing sites.” It …

Extortion Through The Public Record: Has The Internet Made Florida’S Sunshine Law Too Bright?, Michael Polatsek

Florida Law Review

In recent years, privately owned websites around the country have begun to gather arrest records directly from law enforcement websites and republish them on their own sites. Often, the images are displayed without regard to the ultimate disposition of the arrestee’s case. Images and arrest records of individuals who were eventually convicted or acquitted are stored on these websites indefinitely, and specifically designed search algorithms ensure that potentially damaging information is just a click away on commonly used search engines such as Google. Some websites categorize images under derogatory headings based solely on the individual’s appearance and allow users to …

Social Media And The Workplace: How I Learned To Stop Worrying And Love Privacy Settings And The Nlrb, Kathleen Carlson

Florida Law Review

Social media has permeated every aspect of society. The use of social media can easily lead to issues in an employment law context when employees suffer adverse employment actions based on the information they choose to share via their personal social media websites. Today’s laws concerning online privacy are in a nebulous state and have led some observers to suggest that employees who use social media may not find adequate legal protection from wrongful termination. This Note refutes this contention by analyzing current laws that may protect employees from adverse employment actions due to their use of social media. This …

Should The Internet Exempt The Media Sector From The Antitrust Laws?, Thomas J. Horton, Robert H. Lande

Florida Law Review

Suppose the twenty largest traditional news media companies in the United States, including the Wall Street Journal, New York Times, Washington Post, ABC, NBC, CBS, Fox, and CNN, announced the merger of their news operations.

They would likely claim that this merger would result in tremendous cost savings by eliminating duplicative news gathering expenses. They would be correct. They also would argue that prices would not be affected. After all, they compete for advertising dollars and personnel with many other TV and radio shows that are not in the news business. It would be difficult to demonstrate …

A Conceptual Framework For The Regulation Of Cryptocurrencies, Omri Y. Marian

UF Law Faculty Publications

This Essay proposes a conceptual framework for the regulation of transactions involving cryptocurrencies. Cryptocurrencies offer tremendous opportunities for innovation and development but are also uniquely suited to facilitate illicit behavior. The regulatory framework suggested herein is intended to support (or at least not impair) cryptocurrencies’ innovative potential. At the same time, it aims to disrupt cryptocurrencies’ criminal utility. To achieve these purposes, this Essay proposes a regulatory framework that imposes costs on the characteristics of cryptocurrencies that make them especially useful for criminal behavior (in particular, anonymity) but does not impose costs on characteristics that are at the core of …

The White Interest In School Integration, Robert A. Garda Jr.

Florida Law Review

Discussions concerning desegregation, affirmative action, and voluntary integration focus primarily, if not exclusively, on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools, despite white interests underpinning more than thirty years of Supreme Court integration jurisprudence. In this Article, I explore the academic and social benefits whites receive in multiracial schools, and I do so from a white parent’s perspective. The Article begins by describing the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation and affirmative action jurisprudence. Multiracial schools will not …

Student Speech And The First Amendment: A Comprehensive Approach, Lee Goldman

Florida Law Review

Can a school discipline a student for creating a vulgar parody profile of the school principal or another student on the website MySpace? Can it preclude a student from wearing at school a T-shirt that reads, “Homosexuality is shameful”? These are some of the difficult issues raised when students’ First Amendment rights clash with schools’ operational needs and custodial responsibilities. The Supreme Court has addressed students’ First Amendment speech rights on several occasions, most recently in Morse v. Frederick. Lower courts, however, have had great difficulty applying these precedents, particularly when the speech involves the Internet or other new media. …

Possession Of Child Pornography: Should You Be Convicted When The Computer Cache Does The Saving For You?, Giannina Marin

Florida Law Review

“For years, defense lawyers have argued the ‘young and stupid’ semidefense for their youthful clients. Now, we can have the ‘I didn’t know it was on the hard drive’ objection for the unsophisticated computer user in child pornography cases—or at least they can in the 9th Circuit.” This quote, appearing on the website of an East Texas criminal defense law firm, refers to the outcome of United States v. Kuchinski. In Kuchinski, the defendant’s computer contained, in various forms, more than 15,000 images of child pornography. There was no question that Kuchinski’s volitional viewing of the images on the Internet …

Clicking Away Confidentiality: Workplace Waiver Of Attorney-Client Privilege, Adam C. Losey

Florida Law Review

Barbara Hall, an administrative assistant, often arrives at work an hour and a half early solely to check her personal e-mails on her employer’s computer. Afterwards, “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ Barbara Hall carries on a dialogue throughout the workday with her two daughters, both of whom work at an event-planning company in Cleveland and use its e-mail system for such exchanges.” When she gets home from work, Barbara continues to use her workplace e-mail account to send personal e-mails. Barbara Hall and her daughters are not alone. The average employee is estimated …

Student Speech Rights In The Digital Age, Mary-Rose Papandrea

Florida Law Review

For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context—the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a close …

Law Of The Intermediated Information Exchange, Jacqueline D. Lipton

Florida Law Review

When Wikipedia, Google, and other online service providers staged a ―blackout protest‖ against the Stop Online Piracy Act (SOPA) in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could—and should—be reconceptualized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries—the service providers who facilitate all …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

Incendiary Speech And Social Media, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Disclosure’S Effects: Wikileaks And Transparency, Mark Fenster

UF Law Faculty Publications

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm and stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones—what I have described as transparency’s balance. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’ ability to receive and distribute leaked information cheaply, quickly, and …

Public Forum 2.0, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court's public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article …

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous "John Doe" defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire, and other nonfactual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Safe From Sex Offenders? Legislating Internet Publication Of Sex Offender Registries, Bill F. Chamberlin, Christina Locke

UF Law Faculty Publications

In July 2005, the U.S. Department of Justice implemented the National Sex Offender Public Registry, which links the registries of individual states. A year later, the Adam Walsh Bill created the Dru Sjodin National Sex Offender Public Website, which required the Department of Justice to maintain a comprehensive national sex offender registry.

The purpose of this article is to examine the statutory provisions of every state and the District of Columbia regarding the use of the Internet as a tool in administering Megan's Law. The analysis begins by examining sex offender registration and notification laws at the federal level and …

Cybercoverage For Cyber-Risks: An Overview Of Insurers' Responses To The Perils Of E-Commerce, Robert H. Jerry Ii, Michele L. Mekel

UF Law Faculty Publications

Insurers' responses to the risks inherent in e-commerce and the demand for coverage have been anything but uniform. Instead, the solutions are a patchwork of stop-gap measures and niche offerings, including: (1) exclusions to coverage; (2) modifications to existing policies in order to extend or to limit coverage; and (3) the creation of new policies that specifically target Internet-related liabilities and losses. These various measures have been applied in both the first- and third-party settings. This article presents an overview of some of the risks involved in the new "e-economy" and surveys how insurers are responding to these new risks.

Internet Casinos: A Sure Bet For Money Laundering, Jon L. Mills

UF Law Faculty Publications

Since the end of World War II, American society has seen the emergence of technology promising to make life easier, better and longer lasting. The more recent explosion of the Internet is fulfilling the dreams of the high-tech pundits as it provides global real-time communication links and makes the world's knowledge universally available. Privacy concerns surrounding the develop-ment of the Internet have mounted, and in response, service providers and web site operators have enabled web users to conduct transactions in nearly complete anonymity. While anonymity respects individual privacy, anonymity also facilitates criminal activities needing secrecy. One such activity is money …

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

UF Law Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …