Communications Law Commons^™

Is There No Way To The Truth? Copyright Liability As A Model For Restricting Fake News [Notes], Michael Goodyear

Articles & Chapters

A proliferation of fake news has flooded U.S. websites and social media. From misinformation affecting the 2016 election to individuals making profits off of creating false stories, the United States desperately needs a legal response to the fake news crisis. However, U.S. law has effectively forestalled any attempts to bring fake news to heel. The First Amendment has been held to protect fake news. The Communications Decency Act, codified as Section 230, protects online platforms from the remaining potential sources of vicarious liability for fake news. Instead, gradually, self-regulation by websites has started to fill this void.

Proposed solutions have …

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.

Unplanned Obsolescence: Interpreting The Automatic Telephone Dialing System After The Smartphone Epoch, Walter Allison

Michigan Law Review

Technology regulations succeed or fail based upon their ability to regulate an idea. Constant innovation forces legislators to draft statutes aimed at prohibiting the idea of a device, rather than a specific device itself, because new devices with new capacities emerge every day. The Telephone Consumer Protection Act (TCPA) is a federal statute that imposes liability based on the idea of an automatic telephone dialing system (ATDS). But the statute’s definition of the device is ambiguous. The FCC struggles to coherently apply the definition to new technologies, and courts interpret the definition inconsistently. Federal circuit courts have split over these …

Fixing Social Media: Toward A Democratic Digital Commons, Michael Kwet

Markets, Globalization & Development Review

In the past few years, big Social Media networks like Facebook, Twitter, and YouTube have received intense scrutiny from the intellectual classes. This article critiques the dominant strain of criticism, the neo-Brandeisian School of antitrust, for its narrow focus on “regulated competition” as an appropriate means to “fix social media”. This essay calls for a socialist alternative: a democratic social media commons based on free and open source technology, decentralization, and democratic socialist legal solutions. It reviews how existing solutions like the Fediverse and LibreSocial work, and how they may provide answers for a better way forward.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Law Of Black Mirror - Syllabus, Yafit Lev-Aretz, Nizan Packin

Open Educational Resources

Using episodes from the show Black Mirror as a study tool - a show that features tales that explore techno-paranoia - the course analyzes legal and policy considerations of futuristic or hypothetical case studies. The case studies tap into the collective unease about the modern world and bring up a variety of fascinating key philosophical, legal, and economic-based questions.

Going “All In” After Murphy V. Ncaa: An Approach For California To Legalize Sports Gambling, Kailey J. Walsh

UC Law SF Communications and Entertainment Journal

When people think of sports gambling, they think of Las Vegas. Until recently, Nevada was the only state where one could legally place bets on sporting events. However, since the recent Supreme Court decision, Murphy v. NCAA, states are now in control when it comes to deciding whether or not to legalize sports gambling. As a result of the Murphy v. NCAA decision, some states have started to pass legislation to allow its citizens to legally place bets on certain sporting events. The driving force to legalize sports gambling stems from states’ desires to increase revenue through the taxation of …

Leveraging The Ilo For Human Rights And Workers’ Rights In International Sporting Events, Dantam Le

UC Law SF Communications and Entertainment Journal

Sports majorly impact the world, and millions of fans from all over the globe rally together with pride to watch their countries compete on the world’s stage in international sporting events such as the Olympic Games and the World Cup. Studies suggest that mega sporting events help host cities gain an influx of resources from the central government relative to non-host cities in the same country, and that this may be particularly important in periods of economic recession and resource scarcity. Sports play a central role in quality education for all, and sports have been found to advance public health, …

The Shield And The Sword: The Press Between The Public Interest And The Illegal Interception Of Private Communications, Andres Calderon

UC Law SF Communications and Entertainment Journal

Journalism is not only under the attack of fake news and post-truth politics. Its main enemy comes from within. Malpractices of journalism such as the fabrication of sources and fake stories and illegal intrusion in people’s privacy are part of the equation that leads to people’s distrust in news organization.

This article addresses two very related topics that, nevertheless, have not been sufficiently studied as part of the same phenomenon: the reporter’s privilege to protect his sources’ identity and its connection with a journalist’s involvement in the illegal hacking or interception of private communications.

After reviewing most relevant case laws …

This Is No Laughing Matter: How Should Comedians Be Able To Protect Their Jokes?, Sarah Gamblin

UC Law SF Communications and Entertainment Journal

This note will discuss the current state of protection for jokes and comedy. As it is now, the only protection comics have is self-help, meaning comedians take punishing thefts into their own hands. This note will dive into the reasons why the current legislature and courts refuse to recognize jokes as copyrightable. Specifically, why many believe that jokes to not meet the qualifications of being an expression, as well as the fear that protecting jokes will lead to chilled speech.

Additionally, this note shall discuss the ways jokes could be protected under the current legal scheme, including trademark and state …

Information Hacking, Derek E. Bambauer

Utah Law Review

The 2016 U.S. presidential election is seen as a masterpiece of effective disinformation tactics. Commentators credit the Russian Federation with a set of targeted, effective information interventions that led to the surprise election of Republican candidate Donald Trump. On this account, Russia hacked not only America’s voting systems, but also American voters, plying them with inaccurate data—especially on Internet platforms—that changed political views.

This Essay examines the 2016 election narrative through the lens of cybersecurity; it treats foreign efforts to influence the outcome as information hacking. It critically assesses unstated assumptions of the narrative, including whether these attacks can be …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Networks Of Empathy, Thomas E. Kadri

Utah Law Review

Digital abuse is on the rise. People increasingly use technology to perpetrate and exacerbate abusive conduct like stalking and harassment, manipulating digital tools to control and harm their victims. By some accounts, 95% of domestic-abuse cases involve technology, while a sizeable chunk of the U.S. population now admits to having suffered or perpetrated serious abuse online. To make matters worse, people often trivialize digital abuse or underestimate its prevalence. Even among those who do appreciate its severity, there remains ample disagreement about how to address it.

Although law can be a powerful tool to regulate digital abuse, legal responses are …

The Dark Side Of Videoconferencing: The Privacy Tribulations Of Zoom And The Fragmented State Of U.S. Data Privacy Law, Michael Goodyear

Articles & Chapters

COVID-19 has forced the world to increasingly rely on online services to continue daily life. Chief among these, for school, business, and fun, are videoconferencing services. Zoom has led the way, being used by millions, yet it has come to light that Zoom’s data privacy practices are far from ideal. The tracking of users and the sale of personal data has enormous consequences for users’ data privacy. Yet U.S. law provides poor protections for such risky behavior. U.S. data privacy law is fragmented on both the federal and state level, with federal law focusing on industry-specific protections and states each …

In A World Of “Fake News,” What’S A Social Media Platform To Do?, Evelyn Mary Aswad

Utah Law Review

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as …

Saving Small Business From The Big Impact Of Data Breach: A Tiered Federal Approach To Data Protection Law, Nadia Udeshi

Brooklyn Journal of Corporate, Financial & Commercial Law

Small businesses provide a significant positive impact on the American economy. However, the current fragmented federal and state data protection and breach notification legal scheme puts the viability of small businesses at risk. While the probability of data breaches occurring continues to increase, small businesses lack the financial and technological resources to contend with the various state and federal laws that impose different monetary penalties and remedial requirements in the event of such breaches. To preserve the viability of small businesses, Congress should enact a centralized, multi-tiered federal data protection and breach notification framework that preempts state laws, imposes minimum …

Harlem Shake Meets The Chevron Two Step: Net Neutrality Following Mozilla V. Fcc, Christopher R. Terry, Scott Memmel

Washington Journal of Law, Technology & Arts

In October 2019, the D.C. Circuit handed down its much-anticipated decision in Mozilla v. FCC, relying heavily on Chevron Deference and the Supreme Court’s 2005 Brand X decision. The per curiam opinion upheld large portions of the FCC’s 2018 Restoring Internet Freedom Order, but also undermined the FCC’s preemption of state law while also remanding issues related to public safety, pole attachments, and the Lifeline Program to the agency, assuring that the legal and policy battles over net neutrality will continue. This Article traces the history of the FCC’s efforts on net neutrality as it has moved in and out …

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.

“Opening The Door” To Presidential Press Conferences: A Framework For The Right Of Press Access, Alexandria R. Taylor

Washington and Lee Journal of Civil Rights and Social Justice

Since President Donald Trump took office in 2017, there has been tension between the White House and the press. While this tension has been present in prior presidencies, its current manifestation raises important First Amendment issues. This Note discusses the limitations of the President to restrict the press’s right of First Amendment access to presidential press conferences. After delving into the Supreme Court’s development and recognition of the press’s right of access and how the lower courts have interpreted this right, this Note proposes a framework to analyze the press’s right of access and addresses the question of when and …

Any Safe Harbor In A Storm: Sesta-Fosta And The Future Of § 230 Of The Communications Decency Act, Charles Matula

Duke Law & Technology Review

No abstract provided.

The Government Has Information Foia (For Ya): An Analysis Of Requesting Police Records In Collegedale, Tennessee And Athens, Georgia, Tierra Hayes

Capstone Research Projects

The Freedom of Information Act first went into effect in 1967 and was intended to give the general public of the United States more access to information and documents held by government entities. Since enactment, this act has given specifically journalists a means of approach to request previously undisclosed or hard to access materials including, but not limited to, police reports, body camera footage, court filings, budgets, salaries, and other documents held by various government offices. While there are restrictions with considerations such as national security, this access can be seen on national, state, and, as assessed in this research, …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental, & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …

Extending The Roberts Court’S Affirmation Of Individual Expressive Rights To The First Amendment Claim In Masterpiece Cakeshop, Nancy J. Whitmore

Scholarship and Professional Work - Communication

No abstract provided.

Does The Press Have A Right To Be Wrong?: Fake News, Press Freedom, And Defamation Law In 2021, Nathan T. Danielson

Journalism

The following study analyzes defamation lawsuits filed against Fox News and its on-air personalities by companies that manufactured and maintained voting machines used in the 2020 US presidential election. Smartmatic and Dominion accused Fox in court of broadcasting debunked allegations that the companies had rigged the election against incumbent president (and longtime Fox viewer) Donald Trump. The size of the sought-after damages, and the size of Fox itself, make this the largest “fake news suit” in history. This study explores the merits of the suits, defenses to defamation (particularly opinion, political speech, and retraction) and the potential ramifications of a …

Limited Privacy In “Pings:” Why Law Enforcement’S Use Of Cell-Site Simulators Does Not Categorically Violate The Fourth Amendment, Lara M. Mcmahon

Washington and Lee Law Review

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after …

Social Checks And Balances: A Private Fairness Doctrine, Michael P. Vandenbergh

Vanderbilt Law Review

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new …

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.

Social Checks And Balances: A Private Fairness Doctrine, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new …

Executive Authority And Free Speech: An Analysis On The Restraints Of Presidential Power, Leta Lohrmeyer

UNO Student Research and Creative Activity Fair

This analysis examines the implications of social media platforms in connection to free speech and presidential power. Specifically, this study will be drawing on a precedent legal case, Knight First Amendment Inst. v. Trump (2019) along with other cases that are relevant to this paper. This research is contributing to the literature by exploring the topic of how developing technology is influencing political communication. Results support the idea that the definition of public forum needs to be expanded and updated to include social media. Theoretical consequences for the role of social media in connection to executive authority and First Amendment …