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Court Decision Clears Way for State Net Neutrality Laws

On Tuesday, the D.C. Circuit Court of Appeals issued a ruling on the challenge to the FCC’s 2017 net neutrality repeal. The ruling barely upheld the repeal, but sent it back to the FCC for failure to deal with public safety and for deficiencies related to Lifeline subsidies and access to utility poles by broadband-only providers.
Crucially, the court ruled that the FCC’s abdication of oversight over broadband providers left it with no power to prevent states from providing their own net neutrality protections. Read more about Court Decision Clears Way for State Net Neutrality Laws

Deepfakes Article in the Washington State Bar Association Magazine

I'm pleased to have written the cover story for the latest issue of NWLawyer, the magazine of the Washington State Bar Association. The article, available here, discusses the impact that so-called "deepfake" videos may have in the context of the courtroom. Are existing authentication standards for admission of evidence sufficient, or should the rules be changed? What ethical challenges will deepfakes pose for attorneys? How will deepfakes affect juries? Read more about Deepfakes Article in the Washington State Bar Association Magazine

Filtering Facebook: Introducing Dolphins in the Net, a New Stanford CIS White Paper - OR - Why Internet Users and EU Policymakers Should Worry about the Advocate General’s Opinion in Glawischnig-Piesczek

Filtering Facebook: Introducing Dolphins in the Net, a New Stanford CIS White Paper
OR
Why Internet Users and EU Policymakers Should Worry about the Advocate General’s Opinion in Glawischnig-Piesczek

White Paper: Dolphins in the Net: Internet Content Filters and the Advocate General’s Glawischnig-Piesczek v. Facebook Ireland Opinion Read more about Filtering Facebook: Introducing Dolphins in the Net, a New Stanford CIS White Paper - OR - Why Internet Users and EU Policymakers Should Worry about the Advocate General’s Opinion in Glawischnig-Piesczek

Tool Without A Handle: A Duty of Candor

The law and legal professional ethics require of counsel a duty of candor in the practice of law. This includes a duty to not knowingly make false statements of fact, and to not offer evidence the lawyer knows to be false. These principles are considered essential to maintaining both substantive fairness for participants in the process, and trust in the integrity of the process for those outside of it.

Users of information tools in public contexts are not, of course, subject to the same duties. And publication of false information is generally protected by the First Amendment, unless it falls into one of the defined exceptions. I’m doubtful a law against publication of false information would be sustained.

It is, however, perfectly acceptable for most information technology platforms to adopt such a policy and seek to enforce it as best they can. That is, platforms could create and enforce rules against publication of information known to be false. A recent publication from the NYU Stern Center for Business and Human Rights contends platforms should do so. This post concurs: subject to some limitations, private platforms can and should take a position that use of their services to intentionally or carelessly spread false information violates terms of service. Read more about Tool Without A Handle: A Duty of Candor

Talk at the DEF CON Crypto & Privacy Village

I recently had the pleasure of speaking at the Crypto & Privacy Village, which is part of the massive DEF CON computer security conference (and which I help organize). My talk was about a topic that basically everyone seems to be interested in: Can you invoke your Fifth Amendment right against self-incrimination when the police demand that you unlock your smartphone? The answer, unsurprisingly, is: It depends. Read more about Talk at the DEF CON Crypto & Privacy Village

William Barr Despises Your Power to Keep Him from Snooping on You

Attorney General Bill Barr gave a speech yesterday at Fordham that revived the encryption debate in the U.S. after a relatively quiet period. Since the departure of Rod Rosenstein, we hadn’t had a federal law enforcement official out there regularly giving speeches condemning encryption (though FBI Director Chris Wray threw his hat in here and there). Read more about William Barr Despises Your Power to Keep Him from Snooping on You

Adapting Advertising Infrastructure for Content Regulation: WIPO’s BRIP Blacklist

In the name of “brand safety,” advertisers these days are working hard to better control where their ads appear online. Programmatic advertising with real-time bidding automates the process of online ad buying and ad placement to such an extent that the entire process takes place in the time it takes a web page to load. The process is highly efficient, but a significant downside is that ads sometimes appear alongside controversial content with which an advertiser would rather not be associated. Online pornography is the classic example, but other strains of extreme content—e.g., hate speech, conspiracism, and incitement-to-terrorism—have more recently come into focus for advertisers as threats to brand reputation. Read more about Adapting Advertising Infrastructure for Content Regulation: WIPO’s BRIP Blacklist

How to beat a copycat.

If you run a billion (or even million) dollar brand, does it make sense to spend a few thousand dollars to protect your mark from copycats? Or if you are a songwriter, does it make sense to spend thirty-five dollars to register a copyright on your song? The answer is yes. But the recent "SUPREME" trademark drama shows why this answer isn't so obvious to all. Read more about How to beat a copycat.

Bringing the Fight for Court Transparency to the Ninth Circuit

You may recall that in February, a federal district court in Fresno denied a petition I filed with the American Civil Liberties Union, the ACLU of Northern California, and the Electronic Frontier Foundation to attempt to shed light on the Department of Justice's attempt to force Facebook to break the encryption on its Messenger app for encrypted voice calls so that Facebook could carry out a wiretap order the DOJ had obtained. Read more about Bringing the Fight for Court Transparency to the Ninth Circuit

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