FTC versus FCC: Regulation of the Internet

Posted By: Emily Weiss

22495460709_9f99309cf9_oIn late March of 2017, the Senate voted to prevent a set of privacy rules from the Federal Communications Commission from going into effect. Privacy and Internet enthusiasts criticized the vote, and one Virtual Private Network service provider ran a full-page advertisement in the New York Times that named the 50 senators that “voted to monitor your Internet activity for financial gain.

All of this might seem like the death of Internet privacy. The effect of the Senate vote appeared just turned certain regulatory authority over to the Federal Trade Commission (FTC) from the Federal Communications Commission (FCC). Internet service providers and other industry players welcomed the rule repeal, and have argued for consistency between the FTC and FCC privacy rules. Under the FTC rules, ISPs now have far more latitude to sell browsing data from its users to advertisers in order to provide more targeted advertising, just like online service providers, like Google, already can.

With this in mind, is the end of the FCC’s rule the beginning of the end for Internet privacy, and to an extent, net neutrality?

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Executive Order #12333: The Legality of the Most Expansive Domestic Surveillance Program Ever

Posted By: Rob Pollock

Big BrotherFor privacy advocates and civil liberties watchdogs, the year 2016 was a bad year. Executive Order #12333, signed into law over 35 years ago and largely forgotten, has been resurrected in late 2016 with a series of hair-raising executive agency procedures passed by the Obama administration citing the obscure executive order as authorization. This relatively-benign executive order was signed into law by President Ronald Reagan on December 4, 1981, and regarded the relationship between intelligence agencies in how they share information with each other. However now, the executive order is not so benign, and its use as justification for intelligence information collection could represent one of the most egregious violations of the Fourth Amendment and privacy protections we’ve seen in the intelligence community for a long time.

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Twitter and Electronic Surveillance: Or How I Learned to Stop Worrying and Love Big Brother

Posted by: Emily Weiss

Big BrotherOn April 6th, 2017, online microblogging site giant Twitter filed a complaint against the U.S. Department of Homeland Security. Twitter sought the court’s aid in preventing the U.S. Customs and Border Patrol from obtaining information about one of its users – the user who ran the account @ALT_USCIS. Twitter argued that the summons that CBP was using to obtain the information was inapposite, and did not apply to the kind of information CBP actually sought. As a result, Twitter argued, the summons violated the First Amendment and Twitter did not have to comply with it.

Less than a day later, DHS and CBP dropped the summons for information, and Twitter likewise dropped the suit. The American Civil Liberties Union called this a “big victory for free speech and the right to dissent.” But was it? This is not the beginning – nor the end – to Twitter’s apparent commitment to protect its user’s privacy.

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Altering the Scope of Section 230 Immunity: Should Social Media Companies be Responsible for Child Safety?

Posted By: Rob Pollack

laptopHow We Got Here:

In the mid-1990’s, Internet service providers who hosted content on their websites were being held to the same standards as traditional publishers in many lawsuits, leading to a situation in which these Internet companies were forced to spend considerable resources and time policing content on their sites and removing objectionable posts. This high standard was retarding Internet growth and stymying one of the advantages of the Internet: that it was a place for freedom of expression and thought and a place where a vast amount of information could be mined.

If ISPs and interactive content providers were required to police their sites diligently by finding and deleting objectionable content, they would be in court quite often if they allowed for largely free expression on their sites, or more likely, they would stop allowing such free expression on their sites and the users would not be allowed to utilize the Internet in the way Congress wanted the Internet to be utilized. Without taking these steps, the ISP’s would be subject to liability for every single post on their websites and so websites would start to resemble more print-magazines than the Internet we know today. Like print newspapers, everything that is posted would be highly scrutinized, curated, and filtered for content without much room for error. This is not how Congress wanted the Internet to function, and so they decided that they had to take action legislatively to protect ISPs, but has that legal protection gone too far at the detriment of minors? This is the question we have to decide after more than 20 years of Communications Decency Act (CDA) dominance in the legal landscape.

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Bots Everywhere: Copyright Holder Bots and YouTube Content ID: How Both Fail to Factor in Fair Use

Posted by: Julia Ketchum

YouTube_SquareYouTube has become a huge internet success. Today, YouTube has over a billion users and everyday people across the globe watch hundreds of millions of hours of YouTube content. However, when YouTube was first created, it was unclear it would last. In 2007, Viacom sued YouTube since so much of its content was infringing copyrighted materials and Viacom argued YouTube did not do enough to monitor its own site. In response, unsure if the Digital Millennium Copyright Act (DMCA) would protect YouTube from liability, YouTube began working on Content ID in 2007. Content ID allowed YouTube to begin noticing copyrighted material on YouTube prior to getting notification from the copyright holder. It also could show to the court that YouTube was playing a more active role in monitoring its own site. Viacom Intern. v. YouTube ended with YouTube being protected by the DMCA Act, protecting YouTube from liability so long as YouTube followed the process outlined in 17 U.S. Code § 512 of the DMCA. Despite YouTube being protected with DMCA, YouTube still implements its Content ID today. In this post, we will examine how copyright holders typically use bots to generate their copyright claims under 17 U.S.C. § 512 and the shortfalls with that. Then we will move to an analysis of YouTube’s Content ID and how it faces the same shortfalls the copyright holder bots face. Then we will conclude how both systems have failed to use a Fair Use analysis and solutions for the future.

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New FCC Internet Regulations: The Debate Between the Interests of Big ISPs and the Average Consumer

Posted By: Timothy Emmart

town-sign-83730_640You spend an afternoon online. Your browsing activity ranges from dinner recipes, to banking, to alt-right political websites, to pornography, to the top Chinese food delivery near your zip code. According to new congressional action, your ISP may collect the information from your afternoon online. Your ISP now knows that you viewed pornography and it has this knowledge without your knowledge and without your consent. The Internet is not a private place and this is increasingly true.

Conceptions of privacy in the U.S. have been fluid throughout history and as it relates to technology and the Internet. Last year the FCC approved new privacy rules aimed at protecting consumer information in part by placing the consumer in the driver’s seat by requiring ISPs to gain consumer consent on data collection. The new rules would have required ISPs to 1) take reasonable steps to secure consumer data; 2) to inform consumers of what data was being collected, how the data is used, and who has access to it; and 3) to gain consumer consent to data collection. Unfortunately for consumers, the implementation of these new rules was blocked last month by the new head of the FCC.

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The Collective Yar: Fallacies and Failure of Digital Copyrights in an All-Access Culture

Posted By: Drew Weigel

The notion that copyright, in part or in whole, might be an inadequate theory of property for digital media is not new. Some have responsibly argued that the statutory distinction between performance and distribution falls apart when applied to digital media, creating a false and unnecessary distinction between interactive and non-interactive digital communications. Others have gone off the deep end and argued that copyright itself had developed into collective brain damage, fostering a permission culture where expression in a digital era is diminished or completely silenced by fear of infringement. We’re going to descend even further into madness and explore why the heuristics of copyright law—inherently based in property traditions from nobody remembers when—fail to protect that which is demonstrably too elusive to be protected under the same theory. Continue reading

Yelp – The New Teflon Dons?

Posted By: Stephen Timmer

Yelp Defeats Legal Challenge to its User Review Filter.” It is a headline that we have all become accustomed to seeing; the scales of justice tipping in the favor of the 800-lb. gorilla of review sites. As a refresher, Yelp is one of the most recognized review sites on the Internet. Yelp professes itself as a source for consumers to locate local businesses, determine the quality of their services and to provide a forum for consumers to issue reviews on said businesses. James Demetriades, a manager of three restaurants in Mammoth Lakes, California, filed a lawsuit against Yelp; he claimed the site’s review filter was skewed towards displaying negative reviews of one of his restaurants and suppressing the positive reviews. While the case did not go in favor of Mr. Demetriades, it is important to understand how the California Superior Court in Los Angeles applied the law against him and how it was misapplied in this high-profile case. The rules of law cited in the case that could be crucial in holding Yelp liable in future litigation based upon different factual scenarios. Continue reading

The CDA – A Bulletproof Vest for Internet Service Providers?

Posted By: Stephen Timmer

Super Mario’s Pizzeria is celebrating two years in business! His business is in highly competitive area surrounded by other, established pizza places like Luigi’s Lovely Pizza Pies. Mario prides himself on customer satisfaction, whether patrons dine in or if they order take out through his mobile phone app (powered, ironically, by a video game company). He’s even snagged some prime catering gigs from businesses, like Sonic the hedge fund guy. Then one day a less than flattering review shows up on a review site for local businesses called “Holla!” under the name of “The Princess”. Holla, to protect anonymity of its users, allows them to use pseudonyms to protect against any reprisals and to elicit more candid comments. The Princess talks about how she got a fly in her Turtle Soup and how she sat at her table for twenty minutes before someone came over to take her order. Out of five stars she only gave Super Mario’s a half of a star. This review devastated both his dine in and his take out business. Mario has a pretty good memory and he never recalled anybody ever coming in and having an experience like that. Mario starts to think that Holla has made up the review and is favoring Luigi’s pizza joint, based on the lack of any negative reviews about his place. When Mario requests to Holla that they take that defamatory review down, they tell him to go stuff himself down a pipe. Knowing that the review has got to go, Mario decides to take Holla to court to compel them to take the review down. Unfortunately the court gave his case a game over when they told him that Holla cannot be held liable for the comments of its users, because they were not the one’s that posted it. Disheartened, Mario starts to consider a career in the plumbing business.

Unfortunately, a scenario with an infamous review site actually happened to a local service business in Seattle, where an anonymous review put dent in his business. Online service providers have been granted a seemingly bulletproof status thanks to legislation from Congress. While it has typically been a losing battle to challenge these providers in court over their content, recent developments in the United States Court of Appeals for Ninth Circuit  could give businesses an extra life against online providers and their users’ content. Unfortunately, this light at the end of the tunnel for merchants could prove to have dire constitutional consequences for the users of the online services. Continue reading

Is Regulation of Encryption a Regulation of Free Speech?

Posted By: Aidan L. Clark

 

Could the government regulate encryption? Encryption is a word that is used quite often in the public vernacular. At times, encryption is used as a general term, which is invoked when one is referring to concepts of digital information security and securing content of communications. Oftentimes, encryption code is copyrighted, a form of intellectual protection usually reserved for forms of expression protected by the First Amendment. However, it is important to understand the concept of encryption in a fuller sense if there is to be a discussion on the feasibility of regulating such a technology. This is because it is vital to understand why encryption came about, what it is, what it can do, and what it certainly cannot do, when attempting to discover the public policy effects of putting rules in place to govern it. Continue reading