Communications Law Commons^™

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

Section 230'S Debts, Blake Reid

Publications

Much attention has been paid to the unknown First Amendment permissibility of the government regulating social media platforms' carriage practices. The Supreme Court's impending resolution of the NetChoice cases poses a high-stakes First Amendment question: "Can the government permissibly dictate what types of content platforms publish?"

But how did the First Amendment stakes in NetChoice get so high? This Article identifies a long-standing gap in the Supreme Court's First Amendment jurisprudence for platform regulation following its decision in Reno v. ACLU. This Article attributes that gap to the accumulation of both interpretive and legislative debts by Section 230 of the …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

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.

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Race, Disability, And Section 230, Blake Reid

Publications

No abstract provided.

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.

The Domestic And International Limitations Of The Third-Party Doctrine In The Digital Age, Miguel E. Serrano

American University Business Law Review

This Comment argues that the third-party doctrine further alienates EU-U.S. partnerships because the doctrine subverts privacy interests as binding legal precedent. Part II will explore the history of the third-party doctrine up until the Carpenter decision and explain why U.S. privacy rights are linked with access to third-party information. This Comment will further outline EU data protection laws, EU legislation, and the CJEU’s Schrems II decision. In Part III, this Comment will also analyze the new data protection framework, Executive Order 14086, and discuss whether it fails to overcome the CJEU’s concerns over U.S. privacy laws for EU subjects. By …

The Very Interstate Nature Of The Internet? Establishing Uniform Requirements For Internet Transmissions Within Interstate And Foreign Commerce, Catherine Beal

American University Journal of Gender, Social Policy & the Law

This Comment argues that federal statutes, including the jurisdictional nexus of “transmission in interstate or foreign commerce,” should require evidence that a transmission actually traveled through interstate commerce to establish the required federal nexus. Part II of this article describes what threatening internet speech is, the development of the circuit split, and the statutory criteria at issue. Part III analyzes each side of the split and examines when statutory language permits an assumption of interstate or foreign transmission. Part III also proposes adopting a strict definition of “transmission in interstate and foreign commerce” for Internet-based speech and requiring evidence that …

Artificial Intelligence And Weaponized Illusions: Methodologies For Federal Fraud Prosecutions Involving Deepfakes, Andrew W. Eichner

American University Law Review

Experts in the public and private sectors have vocalized concerns over the potential harms that can be inflicted when artificial intelligence (AI) is used maliciously. As AI technology increases in availability, it will become more accessible to criminal actors and allow for the emergence of new kinds of fraudulent schemes. Deepfakes are highly realistic AI-rendered depictions of individuals that criminals have already used to perpetrate fraud on an international scale. These renderings mimic third parties known to victims, allowing fraudsters to leverage the trust and familiarity of an existing relationship to perpetrate their schemes. The deepfake is used to convince …

Truth Bounties: A Market Solution To Fake News, Yonathan A. Arbel, Michael D. Gilbert

Articles

False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.

This Article presents an alternative …

Truth Bounties: A Market Solution To Fake News, Yonathan A. Arbel, Michael D. Gilbert

Articles

False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.

This Article presents an alternative …

The Scales Project: Making Federal Court Records Free, Christopher A. Cotropia

Law Faculty Publications

Federal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical …

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Scholarship@WashULaw

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia

Journal of Nonprofit Innovation

Urban farming can enhance the lives of communities and help reduce food scarcity. This paper presents a conceptual prototype of an efficient urban farming community that can be scaled for a single apartment building or an entire community across all global geoeconomics regions, including densely populated cities and rural, developing towns and communities. When deployed in coordination with smart crop choices, local farm support, and efficient transportation then the result isn’t just sustainability, but also increasing fresh produce accessibility, optimizing nutritional value, eliminating the use of ‘forever chemicals’, reducing transportation costs, and fostering global environmental benefits.

Imagine Doris, who is …

How (Not) To Deal With The Bubble Effect In Cyberspace: The Case Of The Eu And Digital Services Act, João Tornada

Brooklyn Journal of International Law

Deliberative democracies are based on an ideal process of speech and dialogue that fosters an “uninhibited, robust, and wide-open” public discourse sphere. In cyberspace, social networks and search engine platforms largely operate with recommender systems that tailor content according to the users' interests and online behavior (“profiling”), thus segregating them from different points of view (“bubble effect”). While this personalization of content is particularly efficient to promote commercial goods and services, when it comes to information of common interest, especially on political matters, it undermines consensus-building dialogue and threatens democratic ideals. The theory of a free “marketplace of ideas” justifies …

Broadcast In The Past?: The Dangers Of Deregulating Children’S Broadcast Television, Lauren Bashir

Journal of the National Association of Administrative Law Judiciary

This article will begin by providing an overview of the Federal Communications Commission’s role in regulating broadcast television. In Section II, this article will explain in depth how the FCC has placed limitations on the type of content and circumstances under which television stations can broadcast content. This discussion will lead into the Children’s Television Act (CTA) of 1990 and the regulation of children’s television—also known as the KidVid Rules. After providing some background on the creation of the CTA and its effectiveness up to recent times, Section III will dive deeper into the 2019 CTA modifications. Then this article …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

New Problem, Same Old Ecpa: Facebook, Inc. V. State Of New Jersey And The Electronic Communications Privacy Act’S Growing Inadequacy, Austin Fauni

UC Law SF Communications and Entertainment Journal

No abstract provided.

One Step Forward Or Two Steps Back For The Music Industry: Analyzing The Statutory And Practical Issues In Title I Of The Music Modernization Act, Gabriel Ross

UC Law SF Communications and Entertainment Journal

No abstract provided.

Adopting A Solution To Copyright’S Orphan Works Problem, Kylie Arman

UC Law SF Communications and Entertainment Journal

No abstract provided.

Aclp - Comments Re Tn Bead Initial Proposal Volume 2 - December 2023, New York Law School

Reports and Resources

No abstract provided.

Aclp - Comments Re Nys Bead Initial Proposal Volume 2 - December 2023, New York Law School

Reports and Resources

No abstract provided.