Communications Law Commons^™

Professor Monroe Price, Former Cardozo Dean And Distinguished Scholar, Dies At 87, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

Cardozo School of Law commemorates the life and legacy of Professor Monroe Price, who served as dean from 1982 to 1991 and helped shape the school's growth and academic identity. A pioneering scholar in media law and legal education, Price founded and advanced numerous signature programs at Cardozo while making lasting contributions to intellectual property, communications law, American Indian law, and international legal scholarship.

Terminating The Termination Policy Requirement: Protecting Internet Users And Service Providers By Expanding The Dmca Section 512(A) Safe Harbor, Michael Kritzer

Cardozo Law Review

The Digital Millennium Copyright Act of 1998 (DMCA) established “safe harbors” for Internet Service Providers (ISPs) against secondary liability for the copyright infringement perpetrated by their users. Among the requirements for eligibility for these safe harbors is a provision requiring ISPs to implement a policy for terminating repeat infringers. This Note proposes that Congress codify an exception to this termination requirement for a specific class of ISPs—“transitory” providers that solely provide internet access and do not control the information transmitted over their networks.

This Note examines the safe harbor and termination requirement through the lens of two recent secondary infringement …

The Shifting Economics Of Influencer Sponsorship Disclosures, Uri Y. Hacohen

Cardozo Arts & Entertainment Law Journal

Conventional wisdom holds that disclosing influencer sponsorship diminishes advertising's effectiveness by triggering consumer skepticism. Responding to this perceived transparency gap, regulators have adopted mandatory disclosure regimes to address a perceived market failure: the divergence between private commercial incentives and the public interest in transparency. This Article challenges that assumption. Drawing on a large-scale social media experiment (N=600), it demonstrates that disclosures not only increase consumers' recognition of advertising but also improve their attitudes toward both influencers and brands, while significantly boosting their willingness to share promotional content. These empirical results are further supported by a comprehensive synthesis of the emerging …

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Youtube Journalists And The Future Of The Fourth Estate: The Fine Line Between Journalism And Entertainment, Stephan Toljan

Cardozo Arts & Entertainment Law Journal

The note argues that the legal distinction between professional journalists and social media actors has blurred due to the universal accessibility of public digital platforms. It proposes eliminating the requirement of institutional affiliation for the reporter's privilege, suggesting instead that any individual who satisfies the Von Bulow factors regarding the intent to disseminate information to the public should be eligible for the privilege.

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Cardozo Law Review

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law. Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Empowering Digital Consent: A Risk-Focused Due Diligence Tool, Bar Fargon Mizrahi

Cardozo Arts & Entertainment Law Journal

We live in an era of almost infinite digital interactions, many of which involve risks to our rights stemming from various problematic practices, such as data-protection infringements, user profiling, and consumer protection violations. Currently, the protection of digital consumers against these risks rests primarily on a "notice-and-consent" regulatory model-users are legally presumed to have consented to the terms of service (ToS) and privacy policy agreements (PPAs) of the digital services they use. In reality, despite the gravity of the risks involved, users routinely fail to study these binding agreements. Thus, it is widely accepted that this model is ineffective at …

Healing An Unimaginable Loss: How Social Media Platforms Can Help Bereaved Parents Through Adr, Molly Baraban

Cardozo Journal of Conflict Resolution

This Note will argue that Alternative Dispute Resolution ("ADR") can successfully be utilized to mediate disputes between parents and social media platforms to facilitate account access in certain instances where a minor child has passed away in a manner that warrants answers. This Note will argue that the rise in mediation being used to resolve probate issues and reform of arbitration use amongst social media platforms, coupled with the continued increase of minors using social media, indicates opportunities for settlements between parents and platforms. This Note will then propose a multi-tiered approach, that would first utilize a conciliator who is …

Russia’S Foreign Agent Law And Its Consequences For Civil Society And Human Rights, Karen Gilkman

Cardozo International & Comparative Law Review

No abstract provided.

The Doors Of Janus: A Critical Analysis Of The Socio-Technical Forces Eroding Trust In The Rule Of Law, Anuj Puri, Esther Keymolen

Cardozo Arts & Entertainment Law Journal

The Rule of Law is neither just a principle nor solely the institutions that embody that principle, a critical aspect of the Rule of Law is its grounding in trust which often gets neglected in the surrounding discourse. When the citizens' trust in the Rule of Law weakens, the Rule of Law becomes fragile. In this article we examine the impact of emerging technologies on the citizens' trust in the Rule of Law. Our analysis is specifcally focused on the effect of systemic disinformation which is likely to worsen with the advent of Generative AI, algorithmic misgovernance, and the digitalization …

"The Gift Of A Golden Voice": Shaping The Right Of Publicity To Protect Performers From A.I. Abuses, Sebastian Saavedra

Cardozo Arts & Entertainment Law Journal

The note explores the evolving nature of the right of publicity, a unique area of intellectual property and privacy law that protects individuals' control over their likeness and persona. It examines the challenges posed by emerging technologies, particularly AI-generated content, and advocates for a balanced approach that integrates elements from trademark and copyright law while respecting First Amendment rights. The analysis emphasizes the need to protect performers' rights to their public image without undermining established legal frameworks.

Shoot The Messenger: Why Section 230 Does Not Shield Suggestive Content Delivery, Alexander Heinkele

Cardozo Law Review de•novo

Internet companies have frequently relied on Section 230 of the Communications Decency Act of 1996 to avoid liability for third-party content hosted on their platforms. However, over time, companies began to take advantage of the broad cover of Section 230 in circumstances outside the statute’s original scope. This Note advocates for a more nuanced interpretation of the statute as it applies to suggestive algorithms and offers a proposal for amending Section 230 to better reflect the modern digital landscape.

A Wrong In Search Of A Duty: Public Nuisance, Social Media And The Youth Mental Health Crisis, Charles Bachmann

Cardozo Journal of Equal Rights & Social Justice

The note argues that social media companies should be held accountable for their role in the youth mental health crisis through the legal framework of public nuisance law. Drawing parallels to successful cases against tobacco and opioid companies, the author contends that social media platforms, by prioritizing profits over user well-being, contribute to widespread harm such as anxiety, depression, and suicide among youth. While acknowledging concerns about judicial overreach and the challenges of proving causation, the note advocates for judicial intervention as a necessary corrective in the absence of effective legislative action.

No Child Left Online: Influencer “Sharenting” As A Breach Of Fiduciary Duty, Caroline Harrod

Cardozo Law Review

A controversy erupted on the video-sharing app TikTok in the summer of 2022, with audiences accusing a parenting influencer of exploiting her toddler daughter by posting compromising videos of her on the platform. The child’s mother, Jacquelyn, who runs the account @wren.eleanor, frequently shared videos of then-two-year-old Wren engaged in everyday activities such as riding a bicycle, going to the park, and eating snacks with the duo’s 17.1 million followers. Jacquelyn also regularly posted paid partnerships with brands such as SHEIN and Kohl’s, and, in lieu of working a regular job, provided for Wren through earnings from online content creation. …

An Information Flow Model Of Online Mediation: Jeopardizing Privacy And Autonomy In The Shadow Of Innovation, Rachel Ringort, Ayelet Sela

Cardozo Journal of Conflict Resolution

Online mediation has developed significantly over the past decade, and increasingly so following the COVID-19 pandemic. Online mediation platforms are now integrated into both private and public settings, enabling mediation through diverse means-from videoconferencing software to dedicated platforms that use various procedural and technological tools, including artificial intelligencepowered applications. The digital transformation of the mediation process introduces challenges and opportunities for mediators, parties, and mediation platforms, many of which stem from new digital datahandling practices. This article explores how such digital transformation of mediation impacts the parties' rights to self-determination and privacy. Recognizing that these rights derive from the parties' …

Are Holocaust Denial Laws And Critical Race Theory Bans The Same?, Rob Kahn

Cardozo International & Comparative Law Review

Florida's education rules list Holocaust denial and critical race theory ("CRT") as "theories that distort the past." This is not a fair comparison. Holocaust denial laws and CRT bans are analytically distinguishable. Holocaust denial laws were originally intended to fight hate, and this is the only reason they might be legitimate today. By contrast, CRT bans, for all their well-meaning language aboutprotecting childrenfrom race-based accusations of guilt, intend to silence the past. Indeed, the CRT bans are uncannily similar to the laws used in Turkey to ban discussion of the Armenian Genocide in schools. While one might reject both sets …

Always A Suspect: Law Enforcement's Violative Use Of Geofence Warrants And Geolocation Data In Criminal Investigations And Proceedings, Aaron A. Bengart

Cardozo International & Comparative Law Review

The note argues that geofence warrants, used by law enforcement to obtain location data from tech companies, pose significant Fourth Amendment concerns. It advocates for U.S. legislation similar to the U.K.'s to balance privacy rights with law enforcement needs, emphasizing the need for checks to prevent abuse and protect citizens from unreasonable searches.

Deceptive By Nature: A Model For Regulating Native And Embedded Advertising In The Contexts Of Children's Audiences, Zach Cihlar

Cardozo Arts & Entertainment Law Journal

The note advocates for enhanced regulatory measures to protect children from deceptive native and embedded advertising in digital media. It emphasizes the need for the Federal Trade Commission (FTC) to expand its regulatory framework to classify such advertising as deceptive, leveraging existing laws like the Federal Trade Commission Act (FTCA) and the Children's Online Privacy Protection Act (COPPA). The proposed model suggests a combination of stricter regulations, parental involvement through technology, and strengthened self-regulatory mechanisms to address the challenges posed by modern advertising formats.

Bias Notification Duty, Eldar Haber, Shai Stern

Cardozo Arts & Entertainment Law Journal

Algorithms are often tainted with bias that could negatively affect subjects' lives in many aspects. But while policymakers and scholars tend to focus their attention on methods to fix the bias within the algorithm or its output, they neglect a crucial piece of the puzzle: when companies discover bias and fix it in the algorithmic output, they do so behind the scenes. While such a move might debias the output, society remains in the dark about its existence or how it might have affected the outcome. Society thus misses a unique opportunity to study social and cognitive biases that shape …

What Happens When The Conflicts Of Interest Board Does Not Prevent Conflicts? Examining New York City Charter Chapter 68, Abigail Damsky

Cardozo Arts & Entertainment Law Journal

The note critiques the New York Board's advisory opinion on elected officials' use of personal social media accounts, arguing that it contravenes Chapter 68 and Board Rule Section 113 by allowing the use of city resources for political gain, undermining government integrity, and creating transparency issues under the Freedom of Information Law (FOIL). The analysis advocates for revising the advisory opinion to align with existing ethical standards and ensure accountability.

Professional Norms At A Crossroads: Farhane And Its Implications For Legal Counsel, Hayley Sandoval

Cardozo Law Review de•novo

This Note examines the right to effective assistance of counsel during guilty pleas through the lens of the pending Second Circuit case Farhane v. United States. This case will have significant implications for the right to effective legal representation, particularly in terms of defense attorneys’ duty to warn clients of the potential risk of denaturalization as a consequence of pleading guilty. In May 2024, the court reheard Farhane en banc and will issue a decision later this year. If this opinion aligns with the court’s initial decision, it will severely limit the rights of all defendants in criminal proceedings in …

Privacy Shield 2.0—A New Trans-Atlantic Data Privacy Framework Between The European Union And The United States, Sara Gerke, Delaram Rezaeikhonakdar

Cardozo Law Review

This Article is the first to thoroughly examine the new adequacy decision for the Trans-Atlantic Data Privacy Framework (also known as “Privacy Shield 2.0”), including the relevant events and milestones ultimately leading to its adoption. The European Commission adopted the new Privacy Shield on July 10, 2023, to restore transatlantic data flows and commercial exchanges between the European Union and the United States. This Article first explores the holdings of the Court of Justice of the European Union in the groundbreaking cases Schrems I and Schrems II and elaborates on the reasons for the invalidation of the Safe Harbor Decision …

Applying Militant Democracy To Defend Against Social Media Harms, Neil Netanel

Cardozo Law Review

Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the House Select Committee to Investigate the January 6th Attack, in the weeks following the 2020 presidential election, Facebook, Twitter, YouTube, and Reddit knowingly enabled a firestorm of vitriolic far-right election denial on their platforms. In so doing, a Select Committee staff report concludes, the platforms “helped to facilitate the attack on January 6th.”

Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan

Cardozo Law Review

On August 5, 2020, five members of a family were killed when their house was set ablaze. Kevin Bui admitted to investigators that he and two other teens burned the house down after his iPhone had been stolen. He used the Find My application and located his phone at the Green Valley Ranch home. It was not until the next day while reading the news about the arson that he realized he had targeted the wrong residence.

Adjudicating Algorithms: Accountability In Regulation Of Surveillance, Privacy, And Discrimination, Peter Margulies

Cardozo Law Review

The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are frequent features in this turn toward accountability. However, at least in the United States, accountability is still a set of …

The Meta Oversight Board's Human Rights Future, Laurence R. Helfer, Molly K. Land

Cardozo Law Review

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board's ability to hold Meta accountable or to protect the company's users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its …

Arbitrating Social Media Content: A Framework For Banning High-Profile Users Through Third-Party Arbitration, Rachel Gershengoren

Cardozo Journal of Conflict Resolution

No abstract provided.

The Power Of Influence: Standardizing The Influencer Marketing Industry Through Alternative Dispute Resolution, Michele Lehat

Cardozo Journal of Conflict Resolution

No abstract provided.

Thinking Ahead In The Grey Zone, Chris Honeyman, Ellen Parker

Cardozo Journal of Conflict Resolution

Readers who have recently begun to consider the implications of grey zone conflict or hybrid warfare for their own companies, law firms, or other organizations could be forgiven for seeing the entire subject as startling if not downright alarming. But some of our colleagues in this issue, notably Chris Corpora and Anne Leslie, have taken pains to point out how hybrid warfare could be seen instead as merely the latest and most technologically sophisticated version of attempts to undermine other countries which go back millennia. And the specific techniques that might help your company-or law firm, municipal government, university or …

Pay No Attention To The Influencer Behind The Curtain, Eliza Logan

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission (FTC) must strengthen its regulation of social media influencers, particularly on platforms like Instagram, due to their significant influence on consumer behavior and the potential for deceptive marketing practices. It emphasizes that influencers should be held accountable similarly to advertising agencies, as their unique ability to build trust and authenticity with followers makes their endorsements more impactful than traditional advertising.