Tag Archives | Emerging Scholarship

Redeeming Privacy Law, “Bad Incentives” of Social Media Companies, and the Stored Communications Act: Emerging Scholarship in Media Law

This blog post is part of a continuing series examining some of the latest academic scholarship in media law and related fields! Stay tuned for future updates.

In “Body Cameras and the Path to Redeeming Privacy Law,” 96 N.C. L. Rev. 695 (2018), Woodrow Hartzog at Northeastern University School of Law argues that the intense debate over the  implications of police body cameras is a golden opportunity to “redeem” privacy law. Hartzog suggests a number of opportunities for lawmakers, scholars, and judges to alter the traditional approaches to the doctrine of privacy, including changing the “reasonable expectation of privacy” standard and creating laws relating to body camera design. From his abstract:

From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many of the risks posed by the systems will be novel as well. Our privacy rules must keep up.

In this Article, I argue that police body cameras are an opportunity to chart a path past privacy law’s most vexing missteps and omissions. Specifically, lawmakers should avoid falling back on the “reasonable expectation of privacy” standard. Instead, they should use body cameras to embrace more nuanced theories of privacy, such as trust and obscurity. Trust-based relationships can be used to counter the harshness of the third party doctrine. The value of obscurity reveals the misguided nature of the argument that there is “no privacy in public.”

Law and policy makers can also better protect privacy by creating rules that address how body cameras and data technologies are designed in addition to how they are used. Since body-camera systems implicate every stage of the modern data life cycle from collection to disclosure, they can serve as a useful model across industry and government. But if law and policy makers hope to show how privacy rules can be improved, they must act quickly. The path to privacy law’s redemption will stay clear for only so long.

Social media companies are ultimately for-profit corporations; regulations that may seem commonsense for First Amendment protections can often end up harming these companies’ bottom line.  Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, proposes financial penalties to counteract the “bad incentives” of social media companies in “Fixing Social Media’s Grand Bargain.” Yale Public Law Research Paper 652 (2018). From the abstract:

To regulate social media in the twenty-first century, we should focus on its political economy: the nature of digital capitalism and how we pay for the digital public sphere we have. Our digital public sphere is premised on a grand bargain: free communications services in exchange for pervasive data collection and analysis. This allows companies to sell access to end users to the companies’ advertisers and other businesses.

The political economy of digital capitalism creates perverse incentives for social media companies. It encourages companies to surveil, addict, and manipulate their end users and to strike deals with third parties who will further manipulate them.

Treating social media companies as public forums or public utilities is not the proper cure. It may actually make things worse. Even so, social media companies, whether they like it or not, have public obligations. They play important roles in organizing and curating public discussion and they have moral and professional responsibilities both to their end users and to the general public.

A reinvigorated competition law is one important way of dealing with the problems of social media. But this essay also emphasizes a second approach: new fiduciary obligations that protect end-user privacy and counteract social media companies’ bad incentives.

Mitchol Dunham at the University of Denver Law School suggests the need for an updated Stored Communications Act to accommodate “current and emerging technology” in “Arbitrary and Outdated: Reforming the Stored Communications Act.” 83 Cybersecurity, Data Privacy & eDiscovery Law and Policy eJournal (2018). From the article’s abstract:

In 2018, the Supreme Court of the United States had the opportunity to revisit the Stored Communications Act and decide the question of whether the Act could be applied extraterritorially. Instead of answering the question directly, the Court left the question for Congress to decide. Congress took this opportunity and passed the CLOUD Act, legislation that acts more as a temporary fix instead of addressing the real issue: the Stored Communications Act no longer properly accommodates modern technology. This article begins with a reading of the Stored Communications Act, describing the limits of law enforcement’s ability to obtain a warrant, including the seemingly arbitrary decisions that Congress made with respect to certain kinds of data. The article then analyzes the issue that Congress addressed through the CLOUD Act and how the paradigm shifted for extraterritorial data before turning to a different example of where the Stored Communications Act falls short: distributed storage technology. The article provides a detailed examination of how this technology works and why it does not fit within the CLOUD Act paradigm. Finally, the article concludes that the Stored Communications Act cannot be fixed through patchwork legislation; instead, the entire Act needs to be reformed to accommodate current and emerging technology. The article recognizes that although there are two diametrically opposed approaches that Congress can take, a privacy-first approach is preferable and better supported both historically and when examining society’s utilization of the internet.

Come back soon for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.


Political Lies, Internet Free Speech, and Compelled Decryption: Emerging Scholarship in Media Law

This blog post is part of a continuing series examining some of the latest academic scholarship in media law-adjacent fields! Stay tuned for biweekly updates.

In “Legislating Against Lying in Campaigns and Elections,” 73 Okla. L. Rev. 141 (2018), Professor Joshua Sellers at Arizona State University School of Law examines the “harmful” practice of lying during campaigns, finding three specific circumstances where the Supreme Court may uphold a statutory prohibition on intentionally false political speech. From his abstract:

Political speech receives robust protection under the First Amendment, but lying in campaigns and elections is harmful to democracy. In light of the former, what can be done about the latter? In the wake of the Supreme Court’s 2012 decision in United States v. Alvarez, the answer to the question is uncertain. In Alvarez, six Justices supported the conclusion that intentional lies are protected under the First Amendment. The decision renders existing laws regulating intentionally false campaign and election speech extraordinarily vulnerable.

In the following Essay, I consider three circumstances in which narrowly drawn campaign and election speech restrictions are doctrinally defensible. The first is when foreign nationals, during a campaign or election, engage in intentionally false speech expressly advocating for or against the election of a candidate. The second is when intentionally false speech is used to undermine election administration. And the third is when a campaign or outside political group intentionally falsifies a mandatory disclosure filing. Aside from quite limited circumstances such as these, it is exceptionally difficult to craft novel campaign and election speech restrictions that can survive a First Amendment challenge.

Is the Internet truly the “ultimate promoter” of freedom of speech and expression? Moran Yemini, Visiting Fellow at Yale’s Information Society Project, explores the contradiction of the Internet as both vehicle of access and denier of liberty in “The New Irony of Free Speech.Colum. Sci. & Tech. L. Rev. (forthcoming 2019). From the abstract:

In his The Irony of Free Speech, published in 1996, Professor Owen Fiss argued that the traditional understanding of freedom of speech, as a shield from interference by the state, ended up fostering a system that benefited a small number of media corporations and other private actors, while silencing the many, who did not possess any comparable expressive capacity. The conventional wisdom is that by dramatically lowering the access barriers to speech, the Internet has provided a solution to the twentieth-century problem of expressive inequality identified by Fiss and others. As this article will demonstrate, however, the digital age presents a new irony of free speech, whereby the very system of free expression that provides more expressive capacity to individuals than ever before, also systematically diminishes their liberty to speak. The popular view of the Internet as the ultimate promoter of freedom of expression is, therefore, too simplistic. In reality, the Internet, in its current state, strengthens one aspect of freedom (the capacity aspect) while weakening another (the liberty aspect). It trades liberty for capacity. The article will explore the process through which expressive capacity has become a defining element of freedom in the digital ecosystem, at the expense of liberty. The process of diminishing liberty in the digital ecosystem follows along six related dimensions explored in this article: interference from multiple sources; state-encouraged private interference; multiple modes of interference; new-media concentration; lack of anonymity; and lack of inviolability. The result of these liberty-diminishing dimensions of our current system of free expression, taken together, is that while we may be able to speak more than ever before, we are not able to speak freely.

Orin S. Kerr, Professor of Law at the University of Southern California, proposes a simple test for weighing a suspect’s Fifth Amendment right in the face of forced decryption of a phone, computer or file in “Compelled Decryption and the Privilege Against Self-Incrimination.” Tex. L. Rev. (forthcoming 2019). From the article’s abstract:

This essay considers the Fifth Amendment barrier to orders compelling a suspect to enter in a password to decrypt a locked phone, computer, or file. It argues that a simple rule should apply: An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password. The act of entering in a password is testimonial, but the only implied statement is that the suspect knows the password. When the government can prove this fact independently, the assertion is a foregone conclusion and the Fifth Amendment poses no bar to the enforcement of the order. This rule is both doctrinally correct and sensible policy. It properly reflects the distribution of government power in a digital age when nearly everyone is carrying a device that comes with an extraordinarily powerful lock.

Come back soon for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.


Government Whistleblowers, Online Freedom of Expression, and Twitter as a Public Forum: Emerging Scholarship in Media Law

This blog post is part of a continuing series examining some of the latest academic scholarship in media law-adjacent fields! Stay tuned for biweekly updates.

In “Whistleblowing Speech and the First Amendment,” 93 Ind. L.J. 267 (2018), Professor Ronald Krotoszynski Jr. at the University of Alabama School of Law offers an intriguing argument that federal courts should consider whistleblowing speech by government employees in the context of its “critically important” contribution to government accountability and voter information. From his abstract:

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for democratic self-government to function, the voters themselves must possess the information necessary to hold the government accountable. Yet, the information necessary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically important information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election Day. To date, the federal courts have failed to recognize the crucial role that government employees often play in providing voters with the information necessary to make wise electoral decisions. The Connick/Pickering doctrine conveys only modest protection on government employees who engage in whistleblowing speech. Moreover, this doctrine fails to take into account directly the value and importance of whistleblowing speech to voters. Whistleblowing Speech and the First Amendment calls for the recognition of a new subcategory of government employee speech, whistleblowing speech, and proposes more rigorous First Amendment protection for such speech. Simply put, contemporary First Amendment theory and practice fails to provide sufficient protection to government employees who engage in whistleblowing speech that calls the body politic’s attention to wrongdoing, corruption, and malfeasance within government agencies. If we want government employees to speak, rather than remain silent, stronger constitutional medicine than Connick/Pickering will be required.

This Article constitutes part of a longer, book-length project, The Disappearing First Amendment, which Cambridge University Press will be publishing in 2019. The book will show how, in a variety of important contexts, free speech rights have contracted, rather than expanded, under the Rehnquist and Roberts Courts. Salient examples include the speech rights of government employees, as well as access to public property for expressive activities, the speech rights of students and educators, transborder speech, and newsgathering and reporting activities. The book posits that antipathy toward judicial discretion in free speech cases provides a partial explanation for the contemporary Supreme Court’s inconsistent protection of First Amendment rights, as does a more general willingness to tether First Amendment rights to the ownership of property.

How should social media platforms balance moderation of offensive content and freedom of expression? Professor Evelyn Aswad at the University of Oklahoma School of Law explores potential options for companies like Twitter and Facebook in her article “The Future of Freedom of Expression Online.” 17 Duke L. & Tech. Rev. 1 (forthcoming 2018). From the abstract:

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right?

In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their speech codes with standards embodied in international human rights law, particularly the International Covenant on Civil and Political Rights. After the controversy over de-platforming Alex Jones in August 2018, Twitter’s CEO agreed that his company should root its values in international human rights law and Facebook referenced this body of law in discussing its content moderation policies.

This is the first Article to explore what companies would need to do to align the substantive restrictions in their speech codes with the key international standard for protecting freedom of expression. The Article concludes it would be both feasible and desirable for companies to ground their speech codes in this standard though further multi-stakeholder discussions would be helpful in clarifying certain issues that arise in translating international human rights law into a corporate context.

Dawn Carla Nunziato, Professor of Law at George Washington University, examines the “public forum doctrine” as applied to social media pages of politicians in “From Town Square to Twittersphere: The Public Forum Doctrine Goes Digital.” 25 B.U. J. Sci. & Tech. L. (forthcoming 2019). From the article’s abstract:

Government officials like President Donald J. Trump and Maryland Governor Larry Hogan are increasingly using popular social media sites like Twitter and Facebook to connect and interact with their constituents and to solicit public comment on matters of public importance – whether on officially-designated government platforms (like https://www.facebook.com/GovLarryHogan/) or on unofficial platforms used for the same purposes. In recent years, government officials have increasingly turned to social media platforms like Twitter and Facebook in place of (and in addition to) actual town halls and other real-space forums to solicit public participation in policy formulation and to engage with their constituents. When such interactions between government officials and their constituents occur in real space like town halls, they fall comfortably within the scope of the First Amendment’s public forum doctrine, which provides strong protections for freedom of speech and assembly, and prohibits government officials from discriminating against or silencing speakers based on their viewpoint. However, when such interactions take place in cyberspace — on social media sites like Twitter and Facebook — the application of the First Amendment’s public forum is somewhat less clear. Social media sites like Twitter and Facebook are privately owned, which raises issues for the application of the First Amendment’s public forum doctrine. The public forum doctrine (which provides the greatest protection for free speech in general, as well as against content and viewpoint discrimination) traditionally applies to government-owned or government-controlled — not privately-owned — property. The private ownership of social media sites also raises issues for the application of the First Amendment’s state action doctrine, which provides that the restriction of speech by and through private actors does not implicate the First Amendment except in narrow, limited circumstances.

This Article examines whether and to what extent government officials’ use of social media sites to interact with their constituents constitutes a public forum and what this forum analysis means for the ability of government officials to block or censor constituents on their social media sites. Such issues have recently arisen in the context of President Donald Trump’s blocking of constituents with whom he disagrees on his @realDonaldTrump/Twitter account. Similar issues have arisen in the context of Maryland Governor Larry Hogan’s and Virginia County Commissioner Phyllis Randall’s blocking of constituents on their Facebook pages, in response to being asked challenging questions. The recent Supreme Court case of Packingham v. North Carolina sheds some light on the application of the public forum doctrine to social media sites and the use and misuse of such sites by government officials. In particular, Justice Kennedy’s opinion for the Court in Packingham extends his functional, expansive conception of the public forum doctrine to non-traditional forums that function as forums for public discourse. In Part I of this Article, I examine in detail the circumstances surrounding recent incidents in which government officials have blocked constituents from following them on Twitter and from commenting on their Facebook pages. Part II undertakes an analysis of the historical development of the public forum doctrine, its recent development in the digital age, as well as the government speech doctrine and the contrast between public forums and government speech. In Part III, I apply the forum analysis developed in Part II to the recent incidents of government officials’ blocking constituents from accessing their social media sites, with an in-depth analysis of the Trump/Twitter lawsuit in particular, and conclude that such social media sites constitute public forums in which viewpoint discrimination is illegal. Part IV provides suggestions to government officials for developing policies governing social media accounts that comply with the dictates of the First Amendment, and a brief conclusion follows.

Come back soon for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.


Facial Recognition, Student Free Speech, and Suing the President: Emerging Scholarship in Media Law and Policy (9/18 Update)

This blog post is the very first in a new weekly series examining some of the latest academic scholarship in media law-adjacent fields! Stay tuned for weekly updates.

In “Suing the President for First Amendment Violations,” 71 Okla. L. Rev. 321 (2018), Professor Sonja West at the University of Georgia School of Law explores whether individuals or organizations subjected to threats or punishments by President Trump have a viable claim (and the potential problems involved in bringing such a claim) against the President for violating their First Amendment rights.  From her abstract:

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights? One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights. This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.

Professors Neal Hutchens from the University of Mississippi and Frank Fernandez from the University of Houston offer a fascinating look at the exploding tension between “free speech zones” on college campuses, the right of a university to determine the terms of speech on their grounds, and state legislatures eager to dictate speech on campus. Their article, “Searching for Balance with Student Free Speech: Campus Speech Zones, Institutional Authority, and Legislative Prerogatives,” can be found in 5 Belmont L. Rev. 103 (2018). From the abstract:

In the essay, the authors examine the permissibility of student speech zones under the First Amendment. Related to this discussion, the essay also considers recent state legislative efforts to prohibit public colleges and universities from enforcing such campus speech zones. The authors are supportive of legislative measures related to speech zones, but several provisions in proposed state laws and model legislation go beyond this issue and would potentially undercut student free speech rights and unduly interfere with institutional autonomy to manage and respond to issues involving speech and expression on campus. Instead, legislators should exercise restraint when it comes to campus speech laws and not become overly intrusive in how public colleges and universities manage and respond to speech issues on campus, such as when disciplinary measures are warranted for disruption of a campus speaker by a student or when campus leaders make public comments on behalf of the institution in response to a controversial issue on campus. Before considering legal standards and debates related to the (im)permissibility of speech zones for students in open campus areas, the authors in Part I first discuss several factors that influence our positionality in how we approach current debates, legal and otherwise, over free speech issues in higher education. Next, Part II provides overall context regarding key legal standards that courts have used to define student speech rights and institutional authority in relation to open campus areas. As discussed in this section, courts have often turned to forum analysis to provide the legal standards applicable to open campus spaces and student speech. The section considers how courts have not always been consistent regarding how to define the type of forum at issue and the accompanying legal standards. As covered in Part III, legal decisions reveal multiple courts are skeptical of institutional speech regulations deemed overly restrictive as to student speech in open campus areas. Part IV discusses how student speech cases provide an additional legal lens to evaluate student speech rights in open campus areas in addition to forum standards. Even as courts sort out college students’ First Amendment rights to access open campus areas, as considered in Part V, multiple states have moved to enact laws to prohibit them. In conclusion, the final Part of the essay contends that trends against the use of speech zones in relation to students represent a salutary development that pushes institutions to live up to their intellectual commitments to students’ free speech. Even so, other trends, such as proposals to force public colleges and universities to punish students who disrupt the speech of others, are too intrusive on institutional autonomy.

Julian R. Murphy, Human Rights Fellow and LL.M candidate at Columbia University, examines a potential consequence of the recent push for police body cameras in “Chilling: The Constitutional Implications of Body-Worn Cameras and Facial Recognition Technology at Public Protests.” 75 Wash. & Lee L. Rev. Online. 1 (2018). From the article’s abstract:

In recent years body-worn cameras have been championed by community groups, scholars and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the first scholarly treatment of this issue. Far from a purely academic exercise, the police use of FRT equipped body-worn cameras at public protests is sure to confront the courts soon. Many police departments have, or will soon have, body-worn cameras equipped with real time FRT and a number of police departments do not prohibit their members from recording public protests. Although primarily descriptive – exploring the state of current Fourth Amendment doctrine by predicting its application to a hypothetical scenario – this Comment has a normative subtext; namely, suggesting that First Amendment values can strengthen the Fourth Amendment’s protections against the tide of technologically enhanced mass surveillance.

Come back next week for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.