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Recapping the “Can Technology Rescue Democracy” Essay Series at The Atlantic 0

As I mentioned before, I helped organize a series of essays at The Atlantic addressing the question: “Is technology hurting our democracy, and can it help save it?” The series is now complete, so I thought it was worth revisiting the posts, many of which fit neatly into one of the following topic clusters: voting, journalism (including amateur content), privacy/surveillance, education, and platform responsibility. Here are brief excerpts from the 28 essays:

* The Next Great Experiment: the introductory essay by Adrienne, Irina and me: “Despite the unanimous sense of urgency, the authors of these essays are cautiously optimistic, too. Everyone who participated in this series believes there is hope yet—for democracy, and for the institutions that support it.”

* Lessons From Isaac Asimov’s Multivac, by my colleague Shannon Vallor from SCU’s Philosophy Department: “Technology’s threat to democracy is not, at its root, that of poorly designed systems (though certainly design improvements can be made). The real threat is when technical progress is relied upon as a substitute for moral progress in cultivating the civic virtues, norms, and values that sustain functional democracies.”

* The Age of Misinformation, by Harvard Law professor Jonathan Zittrain: “Facebook and Twitter should version-up the crude levers of user interaction that have created a parched, flattening, even infantilizing discourse. For example, why not have, in addition to “like,” a “Voltaire,” a button to indicate respect for a point—while disagreeing with it? Or one to indicate a desire to know if a shared item is in fact true, an invitation to librarians and others to offer more context as it becomes available, flagged later for the curious user?”

* When Internet Memes Infiltrate the Physical World by An Xiao Mina of Meedan: “As people use and share memes in both digital and physical space, they also start making new relationships, forming new networks, and creating new slogans to rally around. It is often much easier to see a person’s political affiliation from the shirts and hats they wear, in addition to what they share online, and from this affiliation can come new conversations and exchanges.”

* You Cannot Encrypt Your Face by Georgetown professor Alvaro Bedoya: “Face recognition is not just about finding terrorists. It’s about finding citizens….As law enforcement develops increasingly powerful surveillance tools, we need to ask ourselves: Are we building a world where no dissent is anonymous?”

Eric’s comment: you probably haven’t been paying attention to anti-mask statutes, but you should. See, e.g., Margot Kaminski’s treatment of the topic. Anti-mask laws have the side effect of ensuring the government can use facial recognition to watch you.

* Democracy Needs Storytellers by Kawandeep Virdee of Medium: “Exploring interactive and participatory media encourages public expression and builds momentum. Documenting the impact closes the feedback loop.”

* The Case for a Taxpayer-Supported Version of Facebook by Ethan Zuckerman, director of the Center for Civic Media at MIT: “Private platforms like Facebook are under no obligation to provide us a diverse worldview. If it is more profitable to bring us baby pictures from our friends than political stories, or to isolate us in a bubble of ideologically comfortable information, they will. A public social media platform would have the civic mission of providing us a diverse and global view of the world. Instead of focusing resources on reporting, it would focus on aggregating and curating, pushing unfamiliar perspectives into our feeds and nudging us to diversity away from the ideologically comfortable material we all gravitate towards.”

Eric’s comment: I did a similar thought experiment several years ago: “What Would a Government-Operated Search Engine Look Like in the US?

* The Antidote to Authoritarianism by Malkia Cyril, founder and executive director of the Center for Media Justice: “As black communities and other targeted groups battle the use of surveillance technologies, they are also battling to use technology to watch back, to speak truth to power, and to hold power to account. When black communities watch back, that’s democracy–or, one face of it….Enforcing the FCC’s Title II Net Neutrality rules passed in 2015, to ensure all Internet traffic is treated equally, is one step the United States must take to preserve democracy in a digital age. It is one way those who have been persistently watched using digital technologies, can watch back using those same technologies. The open internet is a powerful tool in the fight against discriminatory mass surveillance.”

* Disentangling Democracy From Geography by Alexis Lloyd of Axios: “the internet has allowed for communities of interest to form independent of geography. That creates dissonance because we don’t have a mechanism for our online communities to be represented in our political system….That dissonance can also be resolved by designing technological tools in ways that allow for better communication and participation at a local level, tying us more visibly to our geographic communities.”

Eric’s comment: Although Nextdoor isn’t designed as a political advocacy tool, it can serve that role.

* Online Voting Won’t Save Democracy by Bruce Schneier of Resilient Systems: “We need national security standards for voting machines, and funding for states to procure machines that comply with those standards. This means no Internet voting. While that seems attractive, and certainly a way technology can improve voting, we don’t know how to do that securely.” He also calls for online voting registration.

Eric’s comment: I rank voter suppression as one of the top 10 challenges facing our country. Democracy does not work properly when there is systematic disenfranchisement.

* The Voting Technology We Really Need? Paper by Lawrence Norden, Brennan Center for Justice at the New York University School of Law: “every new voting machine in the United States should have a paper record that the voter reviews, and that can be used later to check the electronic totals that are reported.”

* How Platforms Are Poisoning Conversations by Maeve Duggan of Pew Research Center: “Americans were asked who should be responsible for preventing inaccurate information from gaining attention. Overall, equal shares pointed to social media companies and search engines, public policy makers, and members of the public. The prevailing view is that these online public squares should be nurtured and policed by their creators–not just their users.”

* Restoring the Public’s Trust in American Journalism by Mitchell Baker of Mozilla: “The stakes are high when bad actors misappropriate the internet and position fake news to drown out facts for personal gain. Misinformation spread online has the power to influence people’s understanding of real world events. Millions of internet users have no way to quickly assess whether claims are true or false. All of this adds up to loss of trust in core institutions as a source of good information and trustworthy community.”

* Broken Technology Hurts Democracy by Meredith Broussard, professor, Arthur L. Carter Journalism Institute of New York University: “We should use technology to make sure every public school in America has all of the books, supplies, and learning materials that they need….We need technology to run our schools. Not glamorous cutting-edge technology, but workhorse technology: databases, and staff to enter the data into the databases, and database administrators to keep everything running and do the load-balancing at the beginning and end of the semester when hundreds of schools are trying to enter in their updated inventory data simultaneously. We need more accurate budgeting that factors in everything a school needs, from pencils to laptops to tater tots.”

After Broussard’s essay, the Atlantic highlighted some reader comments in response to the essays that had already run: “Does Technology Aid Political Action or Distract From It?

* The Thinning Line Between Commercial and Government Surveillance by Arvind Narayanan, a computer science professor at Princeton, and Dillon Reisman, a researcher working with the Princeton Web Transparency and Accountability Project: “The good news is how effective technology can be in preventing tracking. We found that ad blockers and other browser-privacy tools can decrease tracking by 80 percent or more. More complex tools such as the Tor browser can be even more effective. In other words, the more technically savvy among us can enjoy dramatically better privacy and digital freedoms.”

* Protecting the Public Commons by Alexander Howard of the Sunlight Foundation: “Cities, states, and the federal government must continue to invest not only in opening public information to the public online but partnering with communities to apply it in the public interest, using 21st-century tools to reform 20th-century institutions by honoring the 18th-century philosophies that inspired our nation’s founding.”

* Freeing Technology From the Pace of Bureaucracy by Rebekah Monson of WhereBy.Us: “Government services can and should be delivered as efficiently and effectively as the technology you use to get a ride or order dinner.”

* Democracy Has a Design Problem by Whitney Quesenbery, Center for Civic Design: “If we want technology to help connect people with their government, we have to design it with a human face. It’s really very simple: if you don’t include a wide range of people in the design process, the richness and variety of their experiences are not considered in the final product.”

* Gratitude for Invisible Systems by Debbie Chachra, professor at Olin College of Engineering: “we can collectively fund systems that even the richest, most self-sufficient people couldn’t create for themselves, and we use them to serve the common good. When I look at my phone to decide if I need an umbrella, the little blue dot that says where I am is thanks to the network of Global Positioning System satellites operated by the United States Air Force, and the weather is the result of a $5.1 billion federal investment in forecasting, for an estimated $31.5 billion dollars of benefit in saving lives, properties, and crops (and letting me know I should wear a raincoat).”

* Corporate Surveillance Is Turning Human Workers Into Fungible Cogs by Ifeoma Ajunwa, Cornell University professor: “while the internet and associated technologies have heralded the advent of the unbounded workplace, freedom from set work hours, and the gig economy, those technological advancements have also ushered in management practices that call for greater surveillance and control over employees’ information, including of the sort of information that would have earlier been deemed outside the purview of the employer.”

* Getting to Know Your Online Doppleganger by Dan Rockmore, Dartmouth College professor: “What if, alongside Google’s list of “top sites,” you were given a list of randomly chosen sites from the tail? It might even provide a way for Google or another vendor to broaden your tastes. When it came to delivering news, you might find yourself exposed to sites and sources that you would never come into contact with during your daily information strolls. You might find yourself, if but for a moment, walking in another person’s digital shoes.”

Eric’s comment: online promotion of opposing-viewpoint content has been a popular suggestion in the academic literature for at least 15 years. It has some obvious problems, including the risk of discouraging usage due to perceived degradation of relevancy. Nevertheless, apparently Facebook is taking a step in that direction.

* How Applied Mathematics Could Improve the Democratic Process by Cindy Cohn of EFF: “we could ensure that all elections are fair and accurate with one simple low-tech fix: risk-limiting audits….a random sample of ballots is chosen and then hand-counted. That sample, plus a little applied math, can tell us whether the machines picked the right winner.”

* How Bots and Humans Might Work Together to Stop Harassment by Craig Newmark, founder of Craigslist: “Perhaps news orgs could enlist subscribers or other friends to bring harassment to light. Participants in such a system could simply tweet to the harasser an empty message, or with a designated hashtag, withdrawing approval while avoiding bringing attention to the actual harassment. The empty message might communicate a lot, in zero words.”

* Podcasting Is the New Talk-Radio by Juliette de Maeyer, professor at Université de Montréal: “Podcasts bring you to places you’ve never been, they give you the impression of sharing an animated kitchen-table banter (or a loud bar argument) with a couple of friends. In that regard, podcasts are a “sensational” medium, a quality that may explain why millions of listeners tune in regularly and listen to long-form episodes that defy all common-sense knowledge about the shortness of our attention span.”

* Why News Organizations Can’t Go It Alone by Jeff Jarvis, professor at CUNY Graduate School of Journalism: “The lesson for us in the press: We must learn to listen to the public conversation before we can hope to inform it. We must hear, understand, empathize with, and reflect communities’ concerns and needs to earn their trust. Then and only then will we have any hope of calling them to the rational dialogue and collective discernment informed by fact that define a functioning democracy.”

* What People Really Want From News Organizations by my colleague Sally Lehrman of Santa Clara University’s Markkula Center for Applied Ethics: “The Trust Project, which is a collaboration of news organizations around the world, aims to sharpen the picture by using technology to encourage accurate, ethically produced news and make it easy to find. Think along the lines of a nutrition label on a package of food, or a lab report that conveys your health status when you go in for a checkup.”

* The Case for Standardized and Secure Voting Technology by Dan Gillmor, professor at Arizona State University: “Congress should require standardized voting systems around the nation.”

* Rethinking Ethics Training in Silicon Valley by my colleague and collaborator Irina Raicu of Santa Clara University’s Markkula Center for Applied Ethics: “If technology can mold us, and technologists are the ones who shape that technology, we should demand some level of ethics training for technologists.”

* * *

Some other topics that I’ve been thinking about as part of this series:

* teaching digital literacy in school (this got tangential mentions by Alexander Howard and Rebekah Monson). We cannot expect publishers and intermediaries alone to fix the “fake news” problem. Instead, our only real hope is more sophisticated media consumers. We are already teaching various forms of digital citizenship in school, such as anti-bullying techniques, that may be helping us to understand and properly wield our powerful and unprecedented publication tools. Similarly, we need to do more to teach our children how to critically examine sources. This need isn’t new, and it surely isn’t being ignored by schools; but IMO digital literacy is a sine qua non for democracy’s survival in the digital age.

* accounting for reputation in Facebook’s newsfeed. Fake news can succeed in Facebook because of its virality. But some Facebook users disproportionately share bogus links. As Facebook determines which links are bogus (something it’s already doing), it can also keep count who shared those links. Basically, those folks are disseminators of the pathogens, and Facebook should “quarantine” them by reducing the exposure of their links in other users’ feeds. In effect, people who are habitual sharers of bogus links should have a diminished reputation in Facebook’s algorithm.

* better cybersecurity infrastructure. I assume at this point that hackers can get pretty much any shred of digital data that exists. This has been weaponized to expose secrets when it’s in the discloser’s (or his/her patron’s) interests–examples range from the Sony hack to the Clinton Campaign hack. I’m not sure how to fix this problem, but we have to find a way to prevent this weaponization.

* strengthen the media. As evidence of our post-factual world, our president and his administration habitually lie to the world apparently just to prove they can get away with it, not because the lying advances any strategic or political objective. Also, important decisions are routinely made in the shadows, such as Trump’s tightening of revolving door ethics rules (seemingly a good idea) that have been eviscerated by secret waivers. Without a robust and free media, no one can keep our government accountable for its lies or point out its shady activity. We’ve also seen a startling number of leaks from inside the administration, but without a free press, those leaks have nowhere to go (see, e.g., Fox News’ often scant or nonexistent coverage of leaked info–Fox News shows us what a state-run media might look like). Without the Fourth Estate doing its part, I’m not sure our other institutional checks-and-balances are strong enough to keep our democracy from devolving into despotism.

The easiest step for Congress to take is to enact a federal anti-SLAPP law. While anti-SLAPP protection would not directly empower media companies to watch our federal government (because lawsuits over such publications are generally deterred by the First Amendment), it would dramatically strengthen the overall media ecosystem to ensure the free flow of information that folks want to suppress.

We also need to reconsider who qualifies as a whistleblower and what legal infrastructure they need to perform this vital but risky function. More statutory protection for leaks might help protect this highly valuable information flow.

Finally, we need to take a hard look at FOIA. While FOIA is good policy, our government routinely sandbags FOIA requests and otherwise actively seeks to undermine the law’s intent. I’m not sure about the fix, but some fixes are required to provide the transparency into government functions that we as citizens and taxpayers deserve.

Source: Eric Goldman Legal

Copyright Registrations for Emoticons and Emojis 0

[This is the first of a series of excerpts from my Emojis and the Law paper. Note that I’ve created a new blog category for “Emojis”–the first new category in years!]

In my Emojis and the Law paper, I analyzed when individual emojis and emoticons, emoticon and emoji sets and emoji “house styles” may be copyrightable. For a discussion about the substantive legal doctrine, see the article.

As part of this research, on March 1, 2017, I searched the Copyright Office registration database for the keyword “emoticon.” Because emoticons or emoticon-like images can be registered without referencing the word “emoticon,” this search is surely underinclusive.

I got 24 results, a few of which might be individual emoticons or emoticon sets. The registrations that seemed most likely to include individual emoticons or emoticon sets: VAu000690551 / 2006-01-26 (Carnegie Fabrics); VA0002014215 / 2016-05-03 (Disney Enterprises, for “Emoticon Mickey”); VA0001814013 / 2012-03-26 (David Rand, for “Emoticon “;p” Key Design for Print”); VAu001017590 / 2010-01-07 (Blue Man Productions, for “Emoticon Project Sketches”); VA0000721183 / 1995-04-18 (William Sniffen); VA0001078477 / 2001-03-23 (Stephen Engel); VAu001181706 / 2014-08-15 (GNR8N Kulture).

Separately, on January 20, 2017, I searched the Copyright Office registration database for registrations containing the word “emoji.” As with the emoticon word search, this is surely an underinclusive search.

I came up with 89 records containing the term, of which (judging solely from the titles) about half appear to be registrations for individual emojis or emoji sets.

coke-emoji-3It was particularly noteworthy that the Coca-Cola Company registered 40 emojis (or sets of emojis) on two consecutive days in 2015. See VAu001220148 / 2015-06-18, VAu001220003 / 2015-06-17, VAu001220015 / 2015-06-17, VAu001220007 / 2015-06-17, VAu001220005 / 2015-06-17, VAu001220009 / 2015-06-17, VAu001220017 / 2015-06-17, VAu001220018 / 2015-06-17, VAu001220008 / 2015-06-17, VAu001220004 / 2015-06-17, VAu001220006 / 2015-06-17, VAu001220019 / 2015-06-17, VAu001220150 / 2015-06-18, VAu001220149 / 2015-06-18, VAu001219970 / 2015-06-18, VAu001219977 / 2015-06-18, VAu001220151 / 2015-06-18, VAu001220152 / 2015-06-18, VAu001220154 / 2015-06-18, VAu001219979 / 2015-06-18, VAu001220144 / 2015-06-18, VAu001220157 / 2015-06-18, VAu001220156 / 2015-06-18, VAu001220038 / 2015-06-18, VAu001220026 / 2015-06-18, VAu001220037 / 2015-06-18, VAu001220036 / 2015-06-18, VAu001220035 / 2015-06-18, VAu001220033 / 2015-06-18, VAu001220258 / 2015-06-18, VAu001220260 / 2015-06-18, VAu001220248 / 2015-06-18, VAu001220236 / 2015-06-18, VAu001220034 / 2015-06-18, VAu001219993 / 2015-06-18, VAu001220023 / 2015-06-18, VAu001220247 / 2015-06-18, VAu001220246 / 2015-06-18, VAu001220237 / 2015-06-18. I emailed the Coca-Cola copyright lawyer to ask about these registration but she declined comment. I wonder if it has anything to do with their emoji domain project.

Other possible examples of emoji copyright registrations include: VA0001998998 / 2015-12-23 (Sketchers Company); VA0001928725 / 2014-09-25 (Insytes Design Group LLC, for a “wishful emoji,” apparently for upholstery fabric); VAu001241008 / 2016-04-15 (Idea Nuevo, for a set of 8 unpublished emojis); VA0001881566 / 2013-08-12 (Viva Time); VAu001250187 / 2016-04-12 (High Point Design); VAu001187425 / 2014-09-23 (ju already kno, which includes a “emoji hands finger hole”); VA0002023053 / 2016-06-28 (Nosakhare Ogbebor for “flirty emojis”).

If you have other examples of copyright registrations for emoticons or emojis, I’d be grateful for the references.

I kept electronic copies of my searches if you want to see the backup.

Source: Eric Goldman Legal

Maine: The Next State To Secure Residents’ Online Privacy? 0

Maine online privacy lawOnline privacy is becoming a major state’s rights issue. Illinois lawmakers are well on their way to passing a digital data privacy law, and now it looks like Maine is following in The Prairie State’s footsteps.

Maine’s New Online Privacy Bill

A bipartisan proposal marshaled by state Sen. Shenna Bellows of Manchester, L.D. 1610 — a.k.a. “An Act To Protect Privacy of Online Customer Personal Information” — would require Internet Service Providers to secure consent before releasing users’ browsing data.

“This bill prohibits a provider of broadband Internet access service from using, disclosing, selling or permitting access to customer personal information unless the customer expressly consents to that use, disclosure, sale or access.”

Not only does the bill force providers to secure consent before sharing user data, but it also forbids discount for consent programs.

 “Absolutely Appalling”

In March, the United States Congress voted to trash incoming FCC rules prohibiting ISPs and websites from selling user data. Since then, digital privacy has quickly become a “state’s rights” issue. In fact, many jurisdictions are in the process of drafting their own versions of the now-defunct FCC rules.

Keen to avoid more administrative requirements, most ISPs breathed a sigh of relief when Congress killed the browsing privacy rules. Many residents, however, disagreed. In defense of constituents, state Sen. Bellows chastised federal lawmakers, lamenting that the “reckless vote” put “Mainers’ privacy up for sale.” In support of her bill, Bellows remonstrated:

“Most people are rightfully appalled by the idea that their Internet service provider could be watching their every move online and selling their information to the highest bidder. We owe it to our constituents to protect their privacy.”

Maine has a long way to go before L.D. 1610 becomes law — if it even makes it. But the first step on the ratification journey was a public hearing on May 24th.

Connect With An Internet Law Attorney

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Source: Kelly Warner Law

Your Movements Shall Be Traced: The New EU Regulation on Cross-Border Portability (Guest Blog Post) 0

by guest blogger Marketa Trimble

On May 18, 2017, the European Parliament adopted with amendments the EU Cross-Border Portability Regulation (Regulation (EU) of the European Parliament and of the Council on cross-border portability of online content services in the internal market). The Regulation, which is – as of May 29, 2017 – awaiting approval by the EU Council, introduces important changes to the business of Netflix and other online content service providers (“providers”) that will affect not only providers who are incorporated in the European Union, but also any other providers who provide online content to subscribers in the European Union. The Regulation is a remarkable piece of legislation that raises a number of questions, a discussion of all of which would be too lengthy for a single blog post. This post focuses on only one interesting aspect of the Regulation: the Regulation’s endorsement and justification of providers’ tracking of user movements.

The Regulation requires that providers of paid online content offer EU subscribers who are temporarily present in another EU member state “the same content on the same range and number of devices, for the same number of users and with the same range of functionalities as those offered in their Member State of residence” (Article 3.1 & Recital 21 of the Regulation). For example, when an Estonian subscriber vacations in Belgium, he will no longer see only Belgian Netflix programming; instead, while in Belgium, he will have access to his originally-subscribed Estonian Netflix programming. Netflix will still be allowed to offer its Belgian programming to the Estonian subscriber in addition to his Estonian programming (Recital 23), but the Regulation will not require that Netflix provide its Belgian programming – only its Estonian programming will be required for the Estonian subscriber. The cross-border portability regime within the European Union is mandatory for providers of paid online content; unpaid online content providers may opt in to the regime “to take advantage of the legal mechanism” of the Regulation (Recital 20; also Article 6).

The keys to the functioning of the cross-border portability mechanism under the Regulation are location and localization. First, providers must identify a user’s EU member state of residence (Article 5 & Recital 26). Second, although it is unstated in the Regulation, providers must in some manner trace a user’s movements throughout the European Union to determine the user’s temporary presence, i.e. how long the user is located in an EU member state other than the user’s member state of residence. (Note that the EU legislators have shied away from defining the duration of “temporariness,” which for example the German Bundesrat and the Czech Senate suggested that they do.) Third, for choice-of-law purposes, the actions of the user in the EU member state of the user’s temporary presence will be localized (deemed to occur) in the state of the user’s residence for the purposes of the cross-border portability regime (Article 4 & Recital 24).

It is possible that not all users will be pleased about having their providers follow (and presumably at least temporarily store information about) their physical movements, even if only at country-level detail (Recital 28). Some providers may choose to trace user movements in an unobtrusive way (e.g., by asking users to voluntarily report that they are temporarily outside their member state of residence, although still in the European Union). More likely, though, content providers will use geolocation to trace their users’ movements and verify the temporariness of their users’ location – a practice that may be objectionable to some users. While many providers have been using geolocation to identify users’ current locations, perhaps the providers’ tracing of the durational aspect of users’ movements is not yet common.

Some users may also object to submitting a particular type of document for verification of their residence; for example, it is conceivable that a user might not want to submit a scanned copy of the user’s ID card, which is one possible means of verification that a provider may require (Article 5.1(a)). The requirement by providers of particular means of verification, and their tracing of user movements may lead at least some users to wish they could opt out of cross-border portability if the users are concerned about their privacy and do not want their physical movements to be traced. (Although European Parliament member Kaja Kallas referred to e-IDs as “the most user-friendly means of verification,” most users would not necessarily always equate user friendliness with a high level of privacy and security.)

However, the Regulation does not contemplate the possibility that users would wish to opt out of cross-border portability (e.g., in the example above, that the Estonian user would wish to forego access to Estonian Netflix programming while he is temporarily present in Belgium). Article 7.1 explicitly precludes users from contracting out of cross-border portability because, as Recital 21 summarizes, “parties should not be able to exclude [cross-border portability], derogate from it or vary its effect.” Additionally, Recital 25 precludes contractual choice-of-law provisions that would lead to providers avoiding their obligation to provide cross-border portability. Article 5.4 allows a copyright holder to waive the requirement of location verification, but only as to the initial verification of the user’s member state of residence (also Recital 29), and not as to any verification of the user’s temporary location.

It is perhaps symptomatic of today’s society that the Regulation does not anticipate a user protesting the “advantageous” ability to enjoy the user’s home content while temporarily abroad. As some of my colleagues have noted, it is an unfortunate commentary on the world that users are presumed to want to spend their vacations watching their home programming rather than enjoying local programming and learning about the country they are visiting. Although Julia Reda, a European Parliament member, expressed concern that, without cross-border portability, “making Europe’s amazing cultural diversity accessible to all Europeans” might be inhibited, it is questionable whether cross-border portability will in fact improve the accessibility of diversity and encourage users to enjoy diversity. (See the German Bundesrat’s emphasis in its decision concerning the proposed Regulation that cultural diversity not be impaired by “a more European copyright law.”)

There is something even more troubling about the language of the Regulation that is based on the following interpretation of the Regulation: Providers could interpret the Regulation as giving them no choice but to verify the residency and current location of all their users. While it seems illogical that EU legislators would intend to impose a burdensome obligation on users to accept cross-border portability (with all of its potentially undesirable location verification requirements) without giving users the possibility of opting out of cross-border portability, legislators did not express any such intent in the Regulation. Providers could argue that the Regulation requires them to enable cross-border portability for every user (“shall enable” in Article 3.1), necessitating that they verify the residency and current location of all users, regardless of whether or not a user wishes to enjoy cross-border portability. This argument would mean that the Regulation endorses and justifies large-scale tracking of user movements by providers – an unlikely proposition.

If the omission of any possibility for users to opt out of cross-border portability is by design, one could see the omission as a purposeful attempt to create public outcry about tracing user movements and to instigate public opposition against any territorial limitations on cross-border content. The omission would thus create increased public pressure on copyright owners and content providers to provide content on an EU-wide basis, an outcome that would be in line with the EU Commission’s unfulfilled desire for widespread EU-wide licensing (for a 2014 EU directive on multi-country licensing of musical works see here), if not for completely uniform EU copyright law or unitary EU copyright (see here and here).

P.S.: Once the Regulation is approved, published in the Official Journal of the European Union, and eventually enters into effect, it will require no implementing national legislation; it will be directly applicable in all EU member states, plus in Iceland, Liechtenstein, and Norway.

Source: Eric Goldman Legal

Technology Law News: Common Carrier Loophole Could Benefit Online Business Behemoths 0

technology law common carrier loopholeThe FTC may score a win, courtesy of the Ninth Circuit. The bench opted to revisit the FTC’s case against AT&T for allegedly throttling customer data. Technology law circles are buzzing about this case because if the judges rule in favor of AT&T, the decision will create an  “oversight loophole.”

FTC v. AT&T: The Telecom Fight Over Governmental Oversight

This case began in 2014 when the FTC sued AT&T, under Section 5 of the FTC Act, over improper disclosures about data throttling practices.  AT&T’s response?  You aren’t the boss of us.

Argument: The FTC Shouldn’t Exercise Oversight of Common Carriers

AT&T argued it was exempt from liability because a portion of the business fell under the status of common carrier. As a result, company lawyers reasoned, the entire organization should be exempt from FTC oversight when it comes to disclosure issues.

The senior vice president of Public Knowledge, Harold Feld said, “[The decision] was huge because it was totally unexpected.  Nobody’s ever ruled that way before.”

Why FTC v. AT&T Is A Big Deal Internet Technology Law Case

Since 1914, the FTC has been “working to protect consumers by preventing anticompetitive, deceptive, and unfair business practices, enhancing informed consumer choice and public understanding of the competitive process, and accomplishing this without unduly burdening legitimate business activity.”

For years, the FTC’s gaze has lingered on Internet-related issues.  But if this case falls in favor of AT&T, the commission could, effectively, lose some proverbial power.  How will larger online companies avoid FTC oversight? They’ll buy a small cellphone company, and voila — regulatory-avoidance mission accomplished.

What The Future Holds If AT&T Wins This Internet Law Case

For the time being, the “common carrier loophole” is plugged while the Ninth Circuit, once again, ponders the case. However, if the court rules in favor of the telecom, it will uncork.

Interestingly, on May 18th, the FTC voted 2-1 to begin eliminating net neutrality rules. The change altered the classification of ISPs as common carriers under the Communications Act.  If officials nix the common carrier classification, AT&T will have to change their defense strategy in its case against the FTC.

Kelly / Warner is a leading Internet law firm that works with tech corporations and Internet Service Providers across the United States, Canada, United Kingdom, Asia, and Europe.

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Source: Kelly Warner Law