Communications Law Commons^™

Mute Eloquence: A Gallery Of Contracting Emojis, Courtney Leon

Cardozo Arts & Entertainment Law Journal

The increasing use of emojis in electronic communications, exacerbated by the COVID-19 pandemic, has introduced complexity into contract law due to the lack of standardized interpretation. Courts are encountering disputes over emoji meanings, highlighting the need for a uniform framework. The proposed Emoji Codebook aims to address this by categorizing emojis and providing consistent interpretations, aligning with existing laws like the UCC and E-SIGN Act to facilitate clearer contract formation and mitigate misunderstandings.

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.

The Advent Of Facial Recognition And The Erosion Of The Rule Of Law In "Moscow Smart City", Antonina Semivolos

Cardozo Journal of Equal Rights & Social Justice

The Russian government's deployment of facial recognition technology in Moscow, exemplified by the Popova case, highlights the erosion of civil liberties due to insufficient legal regulation and the absence of safeguards against surveillance overreach. This deployment underscores the broader decline in democratic principles and civil society's diminished capacity to challenge authoritarian measures.

Accessibility In The Digital Age - Why The United States Needs A New Approach To The Americans With Disabilities Act, William J. Seguin

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Americans with Disabilities Act (ADA) must be updated to address digital accessibility, as its current framework, designed for the physical world, fails to accommodate the realities of the digital age. The ADA's success in promoting physical accessibility contrasts sharply with its inadequacy in ensuring equal access to digital spaces, highlighting the need for a new approach that includes digital platforms under its protections.

Takings Property And Appropriative Water Rights, Luis Inaraja Vera

Cardozo Law Review

The Takings Clause of the Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.”1 While courts and academics have put considerable amounts of effort into discussing the meaning of “taken” or “public use,” they have given far less attention to the phrase “private property.” Notable scholars have provided a set of definitions and frameworks to determine when a particular right qualifies as takings property. However, courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an …

Automating Discrimination: Ai Hiring Practices And Gender Inequality, Lori Andrews, Hannah Bucher

Cardozo Law Review

No abstract provided.

Driving The National Labor Relations Act Forward: Analyzing Abusive Conduct That Occurs In The Course Of Protected Activity After General Motors Llc, Kurt Stumpo

Cardozo Law Review

No abstract provided.

Something For Nothing: Untangling A Knot Of Section 230 Solutions, Nicholas Bradley

Cardozo Law Review de•novo

Social media platforms have become the dominant public forum of the modern age but there is a big problem: they are privately owned and can moderate content however they like. This right is protected both by the First Amendment and Section 230 of the Communications Decency Act, the latter of which creates immunity from suit for platforms that exercise their right to moderate content by removing—or not removing—objectionable content. Politicians on both sides of the aisle have complained that platforms are abusing this immunity and, while they have put forward a wide variety of legislative solutions, none of them have …

The "End" Of Neutrality: Tumultuous Times Require A Deeper Value, Carol Pauli

Cardozo Journal of Conflict Resolution

American political talk has grown so fragmented and polarized that some observers say that "[w]e are no longer in any 'public conversation." Accusations of "fake news" are followed by disheartening discoveries that providing people with accurate information may only serve to further entrench their erroneous beliefs. One longtime journalism professor worries aloud that "what's at risk is the idea of a public that is even 'inform-able."' Putting the problem in terms familiar to mediation, can we get the parties back to the table? This essay will focus on journalists, whose ideal has been to maintain a neutral position from which …

Tightwire Of National Interests And Publicity In The Evolved Process Of Democratization And Constitutional Transformation: Lessons From Taiwan, Hsin-Hsuan Lin

Cardozo International & Comparative Law Review

Achieving an optimal balance between government secrecy and democratic accountability has led to long-standing questions in the discussion of contemporary constitutionalism. To address the complex contemporary phenomenon of government secrecy within a democratic society, a more in-depth understanding of its tension with democratic accountability and transparency is essential. This article provides a descriptive overview of Taiwan's legal system, its legal implications in relation to government secrecy, and its normative implications. The article begins with a historical background of Taiwan's legal system, focusing on legal reform as it relates to government secrecy. The article investigates the complex interactions between the administrative, …

Remedying Online Shaming, Miriam Marcowitz-Bitton, Hillel Sommer

Cardozo International & Comparative Law Review

Shaming is an act of subjecting someone publicly to shame, disgrace, humiliation, or disrepute.1 This act has challenged many existing legal regimes. Its effects are devastating, and efforts to cope with it within the current legal framework have been largely unsuccessful, mainly due to the challenges posed by anonymous, online shaming. This article rethinks the remedies currently available to handle shaming. It touches upon both civil and criminal remedies and penalties, considering the role that the right to be forgotten can play in handling shaming effectively. The article argues that only by complementing existing remedies with victims' rights can we …

Section 230 And The Right To Remove Vaccine Misinformation, Michael A. Cheah

Cardozo Arts & Entertainment Law Journal

Recognizing its clear propensity to cause serious public harm, many online platforms have restricted vaccine misinformation. This essay argues that these platforms are protected from liability when they remove such content under Section 230 of the Communications Decency Act. The essay conducts a textual and policy-based analysis of the "publisher" immunity conferred by Section 230(c) (1) and the immunity for restricting objectionable materials under Section 230(c)(2) and concludes that both protect the removal of vaccine misinformation. The essay further argues that repealing Section 230 will not encourage platforms to combat vaccine misinformation as some policymakers have suggested. That is because …

Strengths And Weaknesses Of Notice And Consent Requirements Under The Gdpr, The Ccpa/Cpra, And The Fcc Broadband Privacy Order, Scott Jordan

Cardozo Arts & Entertainment Law Journal

We compare the notice and consent requirements of the three recent privacy regulations that are most likely to serve as the starting points for the creation of a comprehensive consumer privacy bill in the United States: the European General Data Protection Regulation, the Calfornia Consumer Privacy Act/California Privacy Rights Act, and the Federal Communications Commission's Broadband Privacy Order. We compare the scope of personal information under each regulation, including the test for identifiability and exclusions for de-identified information, and identify problems with their treatment of de-identified information and of pseudonymous information. We compare notice requirements, including the level of required …

Section 230: The Internet's Most Important And Most Misunderstood Law Is Unfairly Under Attack, Málfríður A. Helgadóttir

Cardozo Arts & Entertainment Law Journal

Section 230 of the Communications Decency Act, a foundational law enabling the modern internet, is under threat despite its critical role in protecting online platforms from liability for user-generated content. The article argues that Section 230 is essential for promoting free speech and innovation, as its repeal would force platforms to censor content to avoid liability, fundamentally altering the internet. Critics often misunderstand the law, and bipartisan attacks jeopardize its future, risking the unravelling of the internet as we know it.

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

Enhancing The Ftc's Consumer Protection Authority To Regulate Social Media Companies, Paul M. Barrett, Lily Warnke

Cardozo Arts & Entertainment Law Journal

The article argues that Congress should enhance the Federal Trade Commission's (FTC) consumer protection authority to regulate social media companies, focusing on procedural oversight rather than substantive content moderation. It proposes that the FTC ensure social media platforms maintain adequate content moderation systems, disclose algorithmic practices, and comply with transparency requirements, all while respecting First Amendment protections. The authors advocate for legislative reforms to clarify the FTC's role in addressing harmful content and to amend Section 230 of the Communications Decency Act to limit liability protections for certain harmful activities.

Five Reflections From Five Years Of Fosta/Sesta, Kendra Albert

Cardozo Arts & Entertainment Law Journal

The article critically examines the impact of the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), arguing that these laws have disproportionately harmed sex workers by leading to widespread deplatforming and increased criminalization. While FOSTA/SESTA aimed to combat sex trafficking, the author contends that the legislation conflated sex work with trafficking, resulting in the shutdown of harm reduction platforms and exacerbating risks for sex workers. The article emphasizes the need to center the voices of marginalized communities in policy-making and advocates for decriminalization as a more effective approach to preventing exploitation.

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

When Free Speech And Privacy Collide: Why Strict Scrutiny Is A Poor Fit For Nonconsensual Pornography Laws, Leah S. Murphy

Cardozo Law Review

No abstract provided.

Fighting Chance: Conflicts Over Risk In Social Change Litigation, Gwendolyn Leachman

Cardozo Law Review

Drawing on a case study of marriage equality litigation, this Article examines how practice setting affects the construction of risk and the emergence of conflict in social change litigation. Although private law firms often work collaboratively with social movement organizations to pursue common goals, conflicts also emerge when movement groups oppose “risky” private litigation which could imperil the movement’s ongoing impact litigation strategies. How do attorneys in private firms and social movement organizations vary in their framing of risk in social change litigation? Under what conditions does that variation lead to conflict? The findings show that movement-based LGBT rights attorneys …

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann

Cardozo Arts & Entertainment Law Journal

It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must "indicate the source" of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is "generic" and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual "source" of any goods or services might be opaque to consumers.

In part, this difficulty comes from the fact that status as a trademark …

The Fourth Amendment At The Border, Daniel Farrell

Cardozo Arts & Entertainment Law Journal

The note addresses the tension between the Fourth Amendment protections against unreasonable searches and the border search exception, focusing on electronic devices. It argues that despite the border exception, which allows warrantless searches, electronic devices should be treated differently due to the vast personal data they contain. The author advocates for a uniform standard requiring probable cause for invasive searches of electronic devices at the border to balance privacy rights with national security concerns.

Constitutive Choices: Section 230 And First Amendment Values Versus Fosta And President Trump's Executive Order, Scott Memmel, Christopher Terry

Cardozo Arts & Entertainment Law Journal

In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) produced the first category of speech not provided immunity by Section 230 of the Communications Decency Act. This first cut against Section 230 was followed by President Donald Trump's May 2020 executive order aimed at limiting the legal protections for social media companies. Both of these actions represent a new battle over old ideas about protecting expression. This Article uses Paul Starr's "Constitutive Choices" model to suggest that Section 230 represents a legacy of laws and regulations designed to foster free speech and access to information. …

Is It Really A #Ad? An Increase In Rising Influencers Posting Fake Sponsored Content, Amanda Guzman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Secrets Behind Reality Television Shows And Their Unconscionable Contracts, Stephanie Rimberg

Cardozo Arts & Entertainment Law Journal

The note argues that reality television show contracts are often unconscionable due to the significant imbalance of power between producers and participants. These contracts frequently classify participants as independent contractors, despite their integral role in the show, and include provisions that are procedurally and substantively unfair, such as disclaimers of liability and arbitration clauses. The author contends that these contracts violate California contract law and public policy, advocating for participants to be reclassified as employees and for contracts to be amended to protect their rights.

Time For Change: How Google's Anticompetitive Conduct Reveals The Deficiencies Of Modern Antitrust Regulation, Benjamin Clay Hughes

Cardozo International & Comparative Law Review

The note examines the divergent approaches of U.S. and EU antitrust regulations in addressing anticompetitive conduct by tech giants, such as Microsoft and Google. It highlights how the EU has adopted a more aggressive and proactive stance in enforcing antitrust laws, whereas the U.S. has taken a more cautious approach. The analysis underscores the challenges of regulating digital platforms and the need for streamlined procedures to address anticompetitive practices effectively.

The Right Of Publicity As Market Regulator In The Age Of Social Media, Barbara Bruni

Cardozo Law Review

No abstract provided.

When A Picture Is Not Worth A Thousand Words: Why Emojis Should Not Satisfy The Statute Of Frauds' Writing Requirement, Moshe Berliner

Cardozo Law Review

No abstract provided.

Privacy In The Digital Age: Is Our Data Safe?, Ezra Wolfson

Cardozo International & Comparative Law Review

The note examines the Cambridge Analytica scandal and its implications for digital privacy, advocating for enhanced regulatory frameworks to protect user data. It draws parallels with the Enron scandal, suggesting that similar legislative responses, such as the proposed Social Media Transparency Act, are necessary to ensure corporate accountability and user protection in the digital age. The note also explores the potential adoption of GDPR-like regulations in the U.S. and discusses the concept of digital data as property, advocating for compensation for data breaches.