Law Commons^™

Coca-Cola Curses: Hate Speech In A Post-Colonial Context, Brittan Heller

Michigan Technology Law Review

Hate speech is a contextual phenomenon. What offends or inflames in one context may differ from what incites violence in a different time, place, and cultural landscape. Theories of hate speech, especially Susan Benesch’s concept of “dangerous speech” (hateful speech that incites violence), have focused on the factors that cut across these paradigms. However, the existing scholarship is narrowly focused on situations of mass violence or societal unrest in America or Europe.

This paper discusses how online hate speech may operate differently in a postcolonial context. While hate speech impacts all societies, the global South—Africa in particular—has been sorely understudied. …

Nft For Eternity, Hadar Y. Jabotinsky, Michal Lavi

University of Michigan Journal of Law Reform

Non-fungible tokens (NFTs) are unique tokens stored on a digital ledger – the blockchain. They are meant to represent unique, non-interchangeable digital assets, as there is only one token with that exact data. Moreover, the information attached to the token cannot be altered as on a regular database. While copies of these digital items are available to all, NFTs are tracked on blockchains to provide the owner with proof of ownership. This possibility of buying and owning digital assets can be attractive to many individuals.

NFTs are presently at the stage of early adoption and their uses are expanding. In …

Privatizing Copyright, Xiyin Tang

Michigan Law Review

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech …

Cloud Gaming Demystified: An Introduction To The Legal Implications Of Cloud-Based Videogames, Mitchell Longan, Gaetano Dimita, Johan David Michels, Christopher Millard

Michigan Technology Law Review

In this paper, we “demystify” cloud-based videogaming and its legal implications, in two stages. First, we describe the videogame sector; explain the basics of cloud computing and traditional videogame technologies and set out how the two converge in cloud-based videogame systems. Based on this analysis, we distinguish three separate models for cloud gaming services: (i) the “layered” model of Gaming-as-a-Service (‘GaaS’); (ii) the ‘integrated’ model of GaaS; and (iii) the ‘consumer infrastructure-as-a-service’ model. We argue that these three models are key to analyzing how intellectual property rights, contractual rights, and regulatory issues will develop in this novel environment for videogame …

The Best Data Plan Is To Have A Game Plan: Obstacles And Solutions To Reaching International Data Privacy Agreements, James Y. Wang

Michigan Technology Law Review

The modern digital world relies on the instantaneous transfer of data. This digital highway is essential for the growth of the modern digital economy and contributes to the rise of globalization. In order to facilitate these data transfers, ground rules must first be put into place. To date, there are few, if any, binding international data privacy agreements. This is in part due to practical considerations, such as high administrability costs, inadequate enforcement agencies, and complex jurisdictional procedures. More fundamentally, however, this is due to competing incentive structures, as countries are incentivized to protect their own digital sovereignty by limiting …

Institutional Considerations For The Regulation Of Internet Service Providers, Daniel Deacon

Articles

Written to commemorate the twenty-fifth anniversary of the Telecommunications Act of 1996, this Essay looks forward at possible settlements regarding the nagging question of whether and how best to regulate Internet service providers. Rather than start from the standpoint that this or that policy, such as net neutrality, is good or bad, I ask more broadly who should regulate ISPs and under what general framework. I assess and critique various frameworks, including reliance on markets and antitrust; state-level regulation under a federal Title I regime; various frameworks set forward in Republican sponsored bills; and the Save the Internet Act. I …

Content Moderation Remedies, Eric Goldman

Michigan Technology Law Review

This Article addresses a critical but underexplored aspect of content moderation: if a user’s online content or actions violate an Internet service’s rules, what should happen next? The longstanding expectation is that Internet services should remove violative content or accounts from their services as quickly as possible, and many laws mandate that result. However, Internet services have a wide range of other options—what I call “remedies”—they can use to redress content or accounts that violate the applicable rules. This Article describes dozens of remedies that Internet services have actually imposed. It then provides a normative framework to help Internet services …

Individuals As Gatekeepers Against Data Misuse, Ying Hu

Michigan Technology Law Review

This article makes a case for treating individual data subjects as gatekeepers against misuse of personal data. Imposing gatekeeper responsibility on individuals is most useful where (a) the primary wrongdoers engage in data misuse intentionally or recklessly; (b) misuse of personal data is likely to lead to serious harm; and (c) one or more individuals are able to detect and prevent data misuse at a reasonable cost.

As gatekeepers, individuals should have a legal duty to take reasonable measures to prevent data misuse where they are aware of facts indicating that the person seeking personal data from them is highly …

The Case For Banning (And Mandating) Ransomware Insurance, Kyle D. Logue, Adam B. Shniderman

Law & Economics Working Papers

Ransomware attacks are becoming increasingly pervasive and disruptive. Not only are they shutting down (or at least “holding up”) businesses and local governments all around the country, they are disrupting institutions in many sectors of the U.S. economy — from school systems, to medical facilities, to critical elements of the U.S. energy infrastructure as well as the food supply chain. Ransomware attacks are also growing more frequent and the ransom demands more exorbitant. Those ransom payments are increasingly being covered by insurance. That insurance offers coverage for a variety of cyber-related losses, including many of the costs arising out of …

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 …

Impostor Scams, David Adam Friedman

University of Michigan Journal of Law Reform

Impostor scams have recently become the most common type of consumer scam in America, surpassing identity theft. It has never been easier and more profitable to be an impostor scammer. Though the core of these scams dates back centuries, these fraudsters consistently find novel ways to manipulate human motives and emotions. Nonetheless, the public should not give up hope. Policymakers and private actors can slow down this scourge if they focus on the key chokepoints that impostor scammers rely upon to achieve their ends. This Article provides a roadmap for a solution to impostor scams, offering specific suggestions for mitigating …

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 …

Publish, Share, Re-Tweet, And Repeat, Michal Lavi

University of Michigan Journal of Law Reform

New technologies allow users to communicate ideas to a broad audience easily and quickly, affecting the way ideas are interpreted and their credibility. Each and every social network user can simply click “share” or “retweet” and automatically republish an existing post and expose a new message to a wide audience. The dissemination of ideas can raise public awareness about important issues and bring about social, political, and economic change.

Yet, digital sharing also provides vast opportunities to spread false rumors, defamation, and Fake News stories at the thoughtless click of a button. The spreading of falsehoods can severely harm the …

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, …

From Inactivity To Full Enforcement: The Implementation Of The "Do No Harm" Approach In Initial Coin Offerings, Marco Dell'erba

Michigan Technology Law Review

This Article analyzes the way the Securities and Exchange Commission (“SEC”) has enforced securities laws with regard to Initial Coin Offerings (“ICOs”). In a speech held in 2016, the U.S. Commodities Futures Trading Commission (“CFTC”) Chairman Christopher Giancarlo emphasized the similarities between the advent of the blockchain technology and the Internet era. He offered the “do no harm” approach as the best way to regulate blockchain technology. The Clinton administration implemented the “do no harm” approach at the beginning of the Internet Era in the 1990s when regulators sought to support technological innovations without stifling them with burdensome rules.

This …

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

Michigan Law Review

Review of Nick Drnaso's Sabrina.

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.

Different Problems Require Different Solutions: How Air Warfare Norms Should Inform Ihl Targeting Law Reform & Cyber Warfare, Christian H. Robertson Ii

University of Michigan Journal of Law Reform

On February 19, 2018, United Nations Secretary-General Antonio Guterres claimed that he was “absolutely convinced” that “the next war will begin with a massive cyber-attack to destroy military capacity . . . and paralyze basic infrastructure.” The Secretary-General’s greatest concern, however, is that he believes “there is no regulatory scheme for that type of warfare, it is not clear how the Geneva Convention or international humanitarian law applies to it.” Although Additional Protocol I to the Geneva Conventions (AP I) targeting laws generally identify who and what States may target in war, it expressly limits itself to attacks affecting people …

Digital Colonialism: The 21st Century Scramble For Africa Through The Extraction And Control Of User Data And The Limitations Of Data Protection Laws, Danielle Coleman

Michigan Journal of Race and Law

As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism.

Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and …

The Airwaves Meet The Highways, David Redl

Journal of Law and Mobility

I applaud and congratulate the University of Michigan for launching the Journal of Law and Mobility. The timing is perfect. The information superhighway is no longer just a clever metaphor. We are living in an era where internet connectivity is a critical part of making transportation safer and more convenient. Internet connectivity has powered the U.S. and global economies for years now. In the early stages, dial-up connections enabled users to access a vast store of digital information. As the internet and its usage grew, so did the demand for faster broadband speeds. Finally, wireless networks untethered the power of …

The Innocent Villain: Involuntary Manslaughter By Text, Charles Adside Iii

University of Michigan Journal of Law Reform

Michelle Carter’s texts instructing her mentally ill online boyfriend to commit suicide offended the social moral code. But the law does not categorize all morally reprehensible behavior as criminal. Commonwealth v. Carter is unprecedented in manslaughter law because Carter was convicted on the theory that she was virtually present as opposed to physically present—at the crime scene. The court’s reasoning is expansive, as the framework it employs is excessively vague and does not provide fair notice to the public of which actions constitute involuntary manslaughter. Disturbingly, the Massachusetts Supreme Judicial Court affirmed the trial court’s logic. This Article concludes that …

How Many Copies Are Enough Revisited: Open Access Legal Scholarship In The Time Of Collection Budget Constraints, Kincaid C. Brown

Law Librarian Scholarship

This article discusses the results of a study into the open access availability of law reviews, followed by a discussion of why open access has such a high rate of adoption among law reviews, especially in comparison to the journal literature in other disciplines.

Virtual Hatred: How Russia Tried To Start A Race War In The United States, William J. Aceves

Michigan Journal of Race and Law

During the 2016 U.S. presidential election, the Russian government engaged in a sophisticated strategy to influence the U.S. political system and manipulate American democracy. While most news reports have focused on the cyber-attacks aimed at Democratic Party leaders and possible contacts between Russian officials and the Trump presidential campaign, a more pernicious intervention took place. Throughout the campaign, Russian operatives created hundreds of fake personas on social media platforms and then posted thousands of advertisements and messages that sought to promote racial divisions in the United States. This was a coordinated propaganda effort. Some Facebook and Twitter posts denounced the …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

You Can’T Say That!: Public Forum Doctrine And Viewpoint Discrimination In The Social Media Era, Micah Telegen

University of Michigan Journal of Law Reform

The growing prevalence of privately-owned social media platforms is changing the way Americans and their governments communicate. This shift offers new opportunities, but also requires a reinterpretation of the First Amendment’s proscription of government limitations of speech. The public forum doctrine and its proscription of viewpoint discrimination seem particularly stretched by the digital revolution and the development of social media. In ongoing cases, litigants and courts have invoked the doctrine to limit the government’s ability to ‘block’ those who comment critically on government pages—much to the chagrin of those who note the private status of the companies hosting the pages …

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …