Articles

“I believe freedom begins with naming things.” Eve Ensler When the American Dialect Society made “fake news” its 2017 “Word of the Year,” the press release suggested two related reasons for the organization’s decision. The first was the term’s ubiquity. The second was its slipperiness. Beyond referring to propaganda, the term fake news had become […]

Especially in the wake of the 2016 U.S. presidential election, there is increasing debate about how and why to regulate political speech posted on social media platforms, and whether such regulation is possible or desirable. Initially, such debates focused on the concept, production, and circulation of “fake news.” As politicians like President Trump co-opted the […]

Misinformation is not a new problem. As long as information is valuable in helping people make decisions, there will be an incentive for third parties to manipulate that information in a way beneficial to their interests. The result is misinformation, which has taken many forms over the years. Misinformation has a variety of definitions. In […]

The assertion that “sunlight is the best disinfectant,” sometimes stated as “light disinfects,” is so common on the contemporary Internet that it often goes without saying. It’s just true, no argument is needed. When someone does situate the term, the attribution invariably goes to Supreme Court Justice Louis Brandeis, who in 1913 wrote that “sunlight […]

Political identification in the digital age has shifted online: increasingly, people define their political identity in how they come together around issues and news events on the social web. We adopt online political identities in three major ways: through shared consumption of information on social media platforms; through participation in political movements through hashtags and […]

Every decade, the U.S. Census Bureau undertakes its constitutional mandate to count every person once, only once, and in the right place. The 2020 Census is the nation’s first “digital” decennial census; for the first time in its history, the Bureau has invited the majority of the public to participate using an online self-response portal. […]

Picture Election Day. It is probably a Tuesday (though not necessarily). Check-in tables in the high-school gymnasium sort voters by precinct, while plastic privacy screens fill the engine house of a nearby fire station. Some voters return ballots to drop boxes, while others mailed theirs back days ago. Voting remains a manual process in an […]

In the weeks preceding the 2016 United States presidential election several images began making the rounds on Twitter. The graphics sought to “remind” Democrats that they could vote via text message. According to The Wall Street Journal, they were built to resemble genuine “get-out-the-vote material produced by Hillary Clinton’s campaign.” Many included the “Paid for […]

From Reconstruction through the Civil Rights Era, voter intimidation typically took the form of flagrant, violent targeting of blacks and their political supporters. However, in recent decades, those attempting to suppress the vote have embraced more subtle, cynical, and creative methods. Increasingly, voters are being subjected to false information about voter requirements, aggressive questioning about […]

A consequence of our federalist system and tradition is that even though U.S. elections are organized around a national hierarchy, they are executed in a highly decentralized manner, with each state responsible for setting its own standards and procedures for registering voters, casting ballots, and counting votes. The federal government sets broad standards for such […]

There is no perfect, infallible way to count votes. All methods— including optical scan, touchscreen, and hand counting—are subject to errors, procedural lapses, and deliberate manipulation. Almost all U.S. jurisdictions count their votes using computer-based technology, such as touchscreens and optical-scan machines. Computer-based methods are subject to “hacking,” that is, the replacement of legitimate vote-counting […]

Internet voting is the return of voted ballots over the Internet, using a computer, a tablet, or a smart phone. The voted ballot may be transmitted via a web portal, as a PDF or other attachment, or as a fax. IF I CAN BANK ONLINE, WHY CAN’T I VOTE ONLINE? That is a question we […]

More than thirty election-security bills have been introduced in Congress, but most have been stalled in the Senate and no major legislation has been enacted. The bills would require states to make greater use of paper ballots and paper trails, adopt effective audit procedures, and strengthen federal cybersecurity support for state and local election authorities. […]

Finding a silver lining associated with Cambridge Analytica can be difficult. The notion of a private organization using licit and illicit means to undermine elections around the world for profit is hard to reconcile with liberal democratic values. A brief sampling of the myriad allegations against the U.K.-based data analytics firm include: sharing detailed information […]

Too often, combatting public safety and disinformation on the Internet is presented as a false choice between continuing to allow platforms free reign to set rules of the road for our digital media ecosystem and giving the government more control over the content flowing across the networks. Currently, the government in India is moving to […]

Section 230 of the Communications Decency Act (CDA) has provided broad immunity to Internet service providers since 1996. Today, Section 230’s protections are a ripe target for those concerned about the unanticipated power and reach of the small number of giants that have emerged to dominate the digital landscape. But for those specifically concerned about […]

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation for two reasons. First, although one might wonder whether the data-driven, algorithmic activities that enable and invite such manipulation ought to count as protected speech […]

Privacy and surveillance scholars increasingly worry that data collectors can use the information they gather about our behaviors, preferences, interests, incomes, and so on to manipulate us. Consider: investigative journalists recently discovered that Facebook allows advertisers to target vulnerable teenagers at moments when they feel “worthless” and “insecure.” “Sharing economy” firms like the ride-hailing company […]

High-speed Internet access, otherwise known as broadband, is considered essential for partaking in the 21st-century economy; the Internet today is considered as important as road and energy infrastructure in terms of its potential to enhance socioeconomic development. Broadband, a subset of telecommunications infrastructure that includes wire-based and wireless communications networks, is currently a priority in […]

Are you male or female? When were you born? How tall are you? How much do you weigh? You may have encountered these questions when signing up with a fitness mobile application (app) like MyFitnessPal. After you quickly provide this personal information, and consent to the app’s privacy terms and cross-border data transfer policy, the […]

It’s a pleasure to be with all of you this afternoon as we discuss “The Role of the Courts in Shaping Patent Law & Policy.” And what better to address on this issue than the judicial exceptions to § 101? So, you will forgive me if we get a bit into the weeds today, as […]

Good morning. Thank you for inviting me to speak to you today at this conference on patent law. Your invitation stated that I might speak on any relevant topics of my choosing, such as recent trends or developments in case law. But what I choose to speak on are not trends or developments in case […]

Last year, a widely read technology blog turned heads with the deeply disturbing headline: “We Are Truly Fucked: Everyone Is Making AI-Generated Fake Porn Now.” While deliberately provocative, it was— and remains—unfortunately true. An unnamed individual on the popular discussion board, Reddit, superimposed images of celebrities such as Gal Gadot (Wonder Woman), Masie Williams (Game […]

Blockchain fever is hotter than ever. The World Economic Forum predicts that ten percent of global gross domestic product will be stored on blockchain by 2027, which has caused an unparalleled craze regarding blockchain’s possibilities. Some see it as a new way of organizing modern-day society, while others fear the chaos that it could create.There […]

China has recently embraced a national use of “big data” through the implementation of judicial reforms that utilize new technology. These technological reforms have turned China’s judicial system into one closely resembling a common law system. Because of this, China’s use of artificial intelligence (AI) in the judicial setting provides a case study for general […]

Once, courts eschewed “the spector [sic] of trial by machine” and the possibility that “each man’s sworn testimony may be put to the electronic test.” Judges worried “jurors w[ould] abdicate their responsibility for determining credibility, and rely instead upon the assessment of a machine.” Forty years later, that fear has metamorphosed into trusting, even welcoming, […]

This paper seeks to establish how human-designed networks and different flavors of openness—institutional, organizational, informational, and resource-based—can and do coexist meaningfully. As part of that examination, this paper surveys fifty years of openness in the telecommunications and information technologies networking space. The focus is on how the term “openness” has been employed by regulators and […]

Encounters between networked information technologies and law tend to be framed as examples of what happens when an irresistible force meets an immovable object. For example, some argue that networked information and communication technologies are technologies of freedom, able to help human civilizations solve all of our most pressing problems—if only the law will stop […]

Content moderation is such a complex and laborious undertaking, it is amazing that it works at all and as well as it does. Moderation is hard. This should be obvious, but it is easily forgotten. Policing a major platform turns out to be a resource intensive and relentless undertaking; it requires making difficult and often […]

Facebook and YouTube have promised to take down Tide Pod Challenge videos. Easier said than done. For one thing, on the Internet, the line between advocacy and parody is undefined. Every meme, gif, and video is a bit of both. For another, these platforms are structurally at war with themselves. The same characteristics that make […]

It’s not easy being an Internet giant. Once the darlings of the innovation economy, the major technology companies—Amazon, Google/Alphabet, and Facebook—have in recent months found themselves suddenly on the back foot. From the firestorm surrounding the proliferation of “fake news” and hate speech on Facebook and YouTube, to Google’s long-burning dispute with Yelp over the […]

In this essay I discuss the political economy of data-driven platforms in terms of monopolies and monopsonies, arguing that the concentration of buying and selling power builds on and extends a pseudo-omniscient data architecture that feeds on an increasingly seamless data ecosystem. As the mathematical underpinnings of data-driven architectures are further extended into the hardware […]

As we transition to a data-driven economy, we are witnessing the emergence of data-opolies—companies that control a key platform, which, like a coral reef, attracts users, sellers, advertisers, software developers, apps, and accessory makers to its ecosystem. Apple and Google, for example, each control a popular mobile phone operating system (and key apps on that […]

A handful of tech platforms mediate a large and growing share of our commerce and communications. Over the last year, the public has come to realize that the power these firms wield may pose significant hazards. Elected leaders ranging from Senator Elizabeth Warren (D-MA) to Senator Ted Cruz (R-TX) have expressed alarm at the level […]

In December 2017, under the Trump administration, the Federal Communications Commission (FCC or Commission) repealed its 2015 network neutrality rules and abdicated its role to protect consumers and competition in the broadband market. This widely criticized decision, coupled with the enormous and growing power of online platform companies like Amazon, Facebook, and Alphabet’s Google, raised […]

Zero-rated services provide an on-ramp to networked resources that are otherwise beyond many users’ reach. Through such services, wireless service providers offer free access to a curated set of popular applications on the public Internet. Its proponents assert that zero-rated services provide an invaluable introduction to online applications and content, which, in turn, will increase […]

Platform regulation has become the cause celebre of technology regulation: a call to regulate the intermediaries who provide platforms for networked digital services. These include the GAFA giants: Google, Amazon, Facebook, and Apple. Many policy entrepreneurs are peddling solutions as the policy cycle turns, in a classic Kingdon case of “solutions chasing a problem.” Yet networks are not […]

In 1986, science and technology studies scholar Langdon Winner wrote, “The issues that divide or unite people in society are settled not only in the institutions and practices of politics proper, but also, and less obviously, in tangible arrangements of steel and concrete, wires and transistors, nuts and bolts.” To that list, we might add the […]

The metaphor of the marketplace of ideas is under siege with its detractors pointing to Facebook, Twitter, and other social media sites as proof positive that the model is no longer operative. The surprising outcome of the 2016 U.S. presidential election and the concomitant focus on the scourge of “fake news” have placed Internet platforms at the center of […]

From Cloudflare’s headline-making takedown of the Daily Stormer to YouTube’s summer restrictions on LGBTQ content, 2017 was a banner year for platform censorship. Companies—under pressure from lawmakers, shareholders, the press, and some members of the public—ramped up restrictions on speech by adding new rules, adjusting their still-hidden algorithms, and hiring more staff to moderate content. They […]

Backpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.”This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing […]

In 2017, Peter Daou launched “Verrit,” a partisan news site targeted to Democratic voters disappointed with the results of the 2016 election. The site consists of single quotations, facts, and statistics, each formatted as a graphic and labeled with a unique “identification code” to indicate authenticity and accuracy. For instance, a Verrit article titled “Where […]

Election meddling, state-sponsored disinformation campaigns, and the potential manipulation of platform users is provoking intense reactions to technology around the world. The outrage following news reports that the data of millions of people were used without their knowledge to train sophisticated targeting tools that may have manipulated voters suggests that consumers expectations of how their data […]

In the absence of a technology-focused regulator, diverse administrative agencies have been forced to develop regulatory models for governing their sphere of the data economy. These largely uncoordinated efforts offer a laboratory of regulatory experimentation on governance architecture. This symposium essay explores what the Consumer Financial Protection Bureau (CFPB) has done in its first several […]

To tame the, sometimes, harmful power of enormous platforms, we need to reconsider the mathematics of regulation. The law tends to treat the growth of a company linearly, while the power and harm of online activity increases at a much faster rate. We need to scale up the mathematics of regulation to deal with many […]

  Search engines no longer merely shape public understanding and access to the content of the World Wide Web: they shape public understanding of the world. Search engine results produced by secret, corporate-curated “search scripts” of algorithmic and human activity influence societies’ understanding of history, and current events. Society’s growing reliance on online platforms for […]

INTRODUCTION San Francisco is the home of the platform economy. Uber and Airbnb—the poster children of that economy—launched their initial products in the city and used the feedback garnered from Bay Area users to perfect their business models. These and other platform companies also started to build their loyal user bases with Bay Area consumers. […]

Before 2016, blockchain technology was known, if at all, as the technical underpinnings of virtual currency. However, in the past year, blockchain technology has come into its own. It is now seen as a groundbreaking advance that can both reduce frictional costs in existing transactional systems and enable new, previously-unworkable models of social and commercial […]

A new technology called “smart contracts” has emerged. What makes these legal agreements innovative is that their execution is made automatic through the use of computers. This Article examines smart contracts from a legal perspective. Specifically, this Article explains smart contracts’ operation and place in existing contract law. It introduces a distinction between strong and […]

The Federal Rules of Evidence were originally established to create uniformity in evidence law by providing guidance for every evidentiary problem that could be reasonably expected to occur at a trial. The rules are firmly grounded in the tangible, as courts typically deal with the concrete concerns posed by physical evidence or the testimony of […]