Internet Law Commons^™

Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Mateusz Blaszczyk

Scholarly Works

In an important new Article, titled A Matter of Facts: The Evolution of the Copyright Fact-Exclusion and Its Implications for Disinformation and Democracy, Professor Jessica Silbey argues provocatively that we “‘only” know that facts are excluded from copyright protection because Feist Publications v. Rural Telephone Service “says so.” She argues that both the nature and importance of facts has been underdefined and is in flux, nonetheless tracing it to the foundational cases of United States (U.S.) copyright law, and argues for a stronger exclusion of facts, which are publici juris, and belong in the public domain. This central …

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.

What Is Copywritable In Software?, Charles Duan

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Like It Or Not: Recognizing A Special Relationship Between Social Media Companies And Their Users, Alexandra Tran

Fordham Law Review

When the internet plays a role in a plaintiff’s injury, there can be considerable roadblocks barring recovery. At the heart of the dispute over how social media should be legally addressed is the balance between maintaining freedom of expression on the open internet and imposing regulations on social media companies to ensure online safety. When plaintiffs allege that a social media company had a duty to warn them about dangers on its site, courts are generally reluctant to extend the special relationship doctrine to encompass the social media-user relationship. In addition to the high bar set by courts, different jurisdictions …

Virtual Currency As Real Currency, Jeffrey A. Maine

Faculty Publications

Convertible virtual currency is increasingly equated with the notion of real currency. Indeed, the increased acceptance of virtual currency as a payment method among retailers and consumers, the evolution of new types of virtual currency that alleviate price volatility, and the recent expansion of foreign country initiatives confirm the strong trajectory toward virtual currency’s function as a transactional currency. Yet, the tax system continues to classify all forms of virtual currency as “property,” and not “currency,” which results in immediate taxation every time someone buys something with virtual currency. This Article argues that the adopted tax treatment of virtual currency …

Dark Patterns In The Opt-Out Process And Compliance With The California Consumer Privacy Act (Ccpa), Jens Frankenreiter, Van Hong Tran, Aarushi Mehrotra, Ranya Sharma, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

To protect consumer privacy, the California Consumer Privacy Act (CCPA) mandates that businesses provide consumers with a straightforward way to opt out of the sale and sharing of their personal information. However, the control that businesses enjoy over the opt-out process allows them to impose hurdles on consumers aiming to opt out, including by employing dark patterns. Motivated by the enactment of the California Privacy Rights Act (CPRA), which strengthens the CCPA and explicitly forbids certain dark patterns in the opt-out process, we investigate how dark patterns are used in opt-out processes and assess their compliance with CCPA regulations. Our …

Ai Ethics, Law, And Policy, Pauline Kim, Ryan Durrie

Scholarship@WashULaw

AI technologies promise many benefits, but they can also have significant negative impacts on human health, safety, well-being, and fundamental rights. This chapter explores the different governance tools that have been considered for guiding developments in AI in socially beneficial ways, examining the relevance of ethics, law, and policy. Each of these approaches offer tools to address these concerns; however, each has limitations, and none provides a complete solution in itself. Statements of ethical principles can articulate high-level values and goals to guide behavior but are usually quite vague and difficult to operationalize. They also lack any enforcement mechanism. In …

The Click-And-Commit World Order, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

"We Can't Allow Iot Vendors To Pass Off All Such Liability To The Consumer": Investigating The U.S. Legal Perspectives On Liability For Iot Product Security, Prianka Mandal, Amit Seal Ami, Iria Giuffrida, Daniel Shin, Ella Sullivan, Adwait Nadkarni

Faculty Publications

As the regulatory landscape for the Internet of Things (IoT) evolves, vendors are moving towards certifying their products for security. Thus, we need to understand who is liable when certification failures result in harm, i.e., when certified products have vulnerabilities that are exploited to cause harm to users. This paper addresses the fundamental and timely question that has significant implications for vulnerability detection in certified products: who is liable for harm resulting from vulnerabilities in certified products, and who should be so liable? Through a qualitative analysis of contractual documents from 20 IoT vendors, this paper investigates how liability is …

Mechanisms For Including Publics In Administrative Governance, Nina-Simone Edwards

Library Scholarship

This project’s fourth concept paper rethinks public participation in administrative processes. Although participation mechanisms are theoretically designed to enable those affected by regulations to influence their development, it is often extremely difficult for members of the public to meaningfully engage with agencies. After discussing institutional failures of current participation mechanisms, this report develops a set of principles to guide the redesign of public participation mechanisms. These include involving publics earlier in the process, building both public and regulatory capacity for meaningful, two-way communication, and reframing expertise as a public good.

The paper then proposes specific mechanisms to optimize communication between …

Designing Policymaking Mechanisms For Regulatory Dynamism, Nina-Simone Edwards

Library Scholarship

The project’s third concept paper focuses on the design of regulatory policymaking mechanisms that translate decisions about public values–such as “avoid deceiving consumers”–into operationalized forms that support iteration and experimentation. It outlines a set of foundational principles for a dynamic, effective regulatory toolkit that empowers regulators to act sooner, experiment, create governance seams, mandate beneficial friction, and extend regulatory authority in ways that mirror the scale and interdependence of digital supply chains.

To support this expanded regulatory toolkit, the paper recommends empowering regulators to mandate data flow restrictions, to develop design requirements for both user-facing and technical interfaces, to require …

The Sky’S Not The Limit: Navigating Starlink’S Impact On Global Connectivity And Regulation, Michael N. Hillebrand

SMU Science and Technology Law Review

This case note examines the governance implications arising from the onset of accelerated satellite internet expansion and explores potential regulatory solutions for effective governmental oversight. Due to the interconnected nature of the internet and its global network, international organizations and treaties play a crucial role in content and data regulation, and rapid technological evolution presents increasing difficulties for these regulatory frameworks to keep pace. These challenges are particularly evident in satellite-based broadband internet services, with SpaceX’s Starlink emerging as the most prominent and currently relevant service in this domain. Proponents of this technology emphasize its ability to provide internet access …

Transportation Security Administration Use Of Facial Recognition Technology: Turbulence Surrounding Traveler Rights, Mckenly Redmon

SMU Science and Technology Law Review

Facial recognition technology has been employed by law enforcement agencies and private companies for decades. This technology promises safer and more efficient processes to identify individuals in the name of safety. However, not everyone approves of their biometric data being collected. This Article provides an overview of the current use of facial recognition technology by the Transportation Security Administration (TSA) in airport security checkpoints. It begins by explaining the underlying technology behind facial recognition and explores the safety and security concerns behind it. Building on this foundation, this Article then evaluates how the TSA’s use of facial recognition influences science …

The Great Scrape: The Clash Between Scraping And Privacy, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society.

Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this …

Normalizing Facial Recognition Technology And The End Of Obscurity, Woodrow Hartzog, Evan Selinger, Judy Hyojoo Rhee

Faculty Scholarship

This article argues that facial recognition technology is the most dangerous surveillance tool ever invented. Given the unique threats this morally suspect tool poses to privacy, civil liberties, human flourishing, and democracy, the only appropriate response is a ban. To justify our position, we explain why facial recognition is distinctive among biometrics, clarify how even seemingly benign and positive uses of the technology can trigger dangerous normalization dynamics, and pinpoint why current United States laws (with reverberations in the EU’s AI Act) are designed to accelerate a slippery slope that makes mass surveillance nearly inevitable. Our most fundamental contribution lies …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead