Communications Law Commons^™

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Digital Wild West: Foreign Social Media Bans, Data Privacy, And Free Speech, Tiange (Tim) Chen

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Jurisprudence Of Public Concern In Anti-Slapp Law: Shifting Boundaries In State Statutory Protection Of Free Expression, Matthew D. Bunker, Emily Erickson

UC Law SF Communications and Entertainment Journal

No abstract provided.

From Utilitarianism To Fordism: How Americans Brought The Panopticon Home, Katherine Hoppe

UC Law SF Communications and Entertainment Journal

The COVID-19 pandemic forced many not considered essential employees into their homes. Many employers worried about employee accountability, leveraged surveillance techniques to maximize employee performance and ensure productivity. These technologies include screen monitoring software, video recordings of employees within their homes, monitoring of social media, and typing efficiency. While employees continue to work outside of the office, private employers will increasingly monitor employees in spaces traditionally considered private—including the home. As private and public life spheres continue to overlap, privacy for workers may erode. What kinds of surveillance have employees experienced in their homes since the Covid-19 lockdown orders? Moreover, …

Cut! . . . Out Of Credit Arbitration The Case For Giving Hollywood Directors A Formalized Dispute Resolution Procedure For Conflicts Of Attribution, Madeline Giles

UC Law SF Communications and Entertainment Journal

No abstract provided.

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Burning The House To Roast A Pig: Examining Florida’S Controversial Social Media Law, Wes P. Rahn

Mercer Law Review

The recent proliferation of social media platforms has revolutionized the way individuals convey ideas and communicate with one another. Social media has quickly become the most dominate form of communication, surpassing more traditional modes of communication such as newspapers and television. It is estimated that over two-thirds of American adults now use social networking sites. Moreover, an astonishing 90% of young adults use social media. Social media has not only become an integral part of American culture in terms of entertainment and communication, but has also become a useful tool for politicians and the electorate who wish to engage in …

Section 230 Of The Communications Decency Act: The “Good Samaritan” Law Which Grants Immunity To “Bad Samaritans”, Josh Slovin

Mercer Law Review

In 1989, the “world wide web” launched in the public domain, creating what we call today the “internet.” However, the internet was slow to catch on. In 1996, there were only 20 million American users on the internet. As the adoption of the internet by Americans slowly increased so did the development of internet websites and internet services. The United States Congress quickly began to see the pitfalls of the internet unfolding before its own eyes. In effect, the internet created a new venue for the dissemination of defamatory and elicit content.

Beginning in 1991, litigation commenced when individuals sought …

Content Moderation Issues Online: Section 230 Is Not To Blame, Reese D. Bastian

Texas A&M Journal of Property Law

Section 230 of the Communications Decency Act (“Section 230”) is the glue that holds the Internet—as we know it today—together. Section 230 says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Simply put, Section 230 says that websites or platforms are not liable for content posted by third parties. There are many critics who attribute the maladies of the online world to Section 230. Section 230 presents issues such as over-moderation by Interactive Computer Service (“ICS”) providers that can go as far …

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 …

Passcodes, Protection, And Legal Practicality: The Necessity Of A Digital Fifth Amendment, Ethan Swierczewski

Catholic University Journal of Law and Technology

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 …

A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis

Elisabeth Haub School of Law Faculty Publications

The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms--no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution.

In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …

Common Law Rules: Applying Common Law Principles To Reassigned Phone Number Disputes Under The Tcpa, Monica Fritsch

American University Business Law Review

No abstract provided.

Masthead, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

Table Of Contents, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

À La Carte Cable: A Regulatory Solution To The Misinformation Subsidy, Christopher R. Terry, Eliezer J. Silberberg, Stephen Schmitz, John Stack, Eve Sando

Catholic University Journal of Law and Technology

Although “fake news” is as old as mass media itself, concerns over disinformation have reached a fever pitch in our current media environment. Online media outlets’ heavy reliance on user-generated content has altered the traditional gatekeeping functions and professional standards associated with traditional news organizations. The idea of objectivity-focused informational content has primarily been substituted for a realist acceptance of the power and popularity of opinion-driven “news.” This shift is starkly visible now: mainstream news media outlets knowingly spread hoaxes, conspiracy theories, and the like.

This current state of affairs is not some freak accident. The Supreme Court’s First Amendment …

The Rise Of 5g Technology: How Internet Privacy And Protection Of Personal Data Is A Must In An Evolving Digital Landscape, Justin Rabine

Catholic University Journal of Law and Technology

No abstract provided.

The Application Of The Right To Be Forgotten In The Machine Learning Context: From The Perspective Of European Laws, Zeyu Zhao

Catholic University Journal of Law and Technology

The right to be forgotten has been evolving for decades along with the progress of different statutes and cases and, finally, independently enacted by the General Data Protection Regulation, making it widely applied across Europe. However, the related provisions in the regulation fail to enable machine learning systems to realistically forget the personal information which is stored and processed therein.

This failure is not only because existing European rules do not stipulate standard codes of conduct and corresponding responsibilities for the parties involved, but they also cannot accommodate themselves to the new environment of machine learning, where specific information can …

First Amendment Battles Over-Anti-Deplatforming Statutes: Examining Miami Herald Publishing Co. V. Tornillo's Relevance For Today's Online Social Media Platform Cases, Clay Calvert

UF Law Faculty Publications

Florida adopted a statute in 2021 barring large social media sites from deplatforming-removing from their sites-candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms' First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida's statute) and NetChoice, LLC v. Paxton (attacking Texas's law) is the significance of the U.S. Supreme Court's 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down …

The Everyday First Amendment, Leonard M. Niehoff, Thomas Sullivan

Articles

On June 26 and June 27, 2019, some twenty contenders for the Democratic nomination for President of the United States participated in two evenings of political debate. The outsized group included Rep. Tulsi Gabbard of Hawaii, who was struggling to gain traction with voters. Shortly after the debate, while many viewers were conducting online searches to learn more about the candidates, Google temporarily suspended her campaign’s advertising account.

Google claimed that the interruption occurred because an automated system flagged unusual activity on the account. But Gabbard did not accept this explanation; she believed that Google deliberately had tried to undermine …

Protecting Expert Advice For The Public: Promoting Safety And Improved Communications, Julia M. Wright, Wendy Hui Kyong Chun, Amanda Clarke, Matthew Herder, Howard Ramos

Articles, Book Chapters, & Popular Press

The drivers of the harassment and intimidation of researchers are complex, widespread, and global in their reach and were being studied across many disciplines even before COVID-19. This policy briefing reviews some of the scholarship on this wide-ranging problem but focuses on what can be done to help ensure that Canadians fully benefit from the work of Canada’s researchers while also preserving the security and safety of those researchers. It identifies policies and actions that can be implemented in the near term to gather information on the problem, better frame public research communications, and ensure that mechanisms are readily available …

Deepfakes, Shallowfakes, And The Need For A Private Right Of Action, Eric Kocsis

Dickinson Law Review (2017-Present)

For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.

People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly …

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 …

Bringing The Ada Out Of The Dark Ages: Social Media Websites Should Be Required To Meet The Accessibility Requirements Of The Americans With Disabilities Act, Olivia Garcia

University of San Francisco Law Review

No abstract provided.

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

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 …