Of Interest

  • “Tool Without a Handle: Reflections on 20 years from Reno v. ACLU”

    On 26 June 1997, in Reno v ACLU, the US Supreme Court decided the fate of the Communications Decency Act (“CDA”), insofar as it criminalized the intentional transmission of "obscene or indecent" messages or information.  In doing so, the Court made not only a finding that this provision of the CDA violated the 1st Amendment, but applied an approach to Internet cases with clear implications for cases the Court faces today.

    Reno established that it is essential the Court recognize differences between the measured pace of judge-made law and the blistering pace of technology’s evolution, a point that is still cited by the Court today. And, it identified that the capabilities and availability of the tools at issue have an important role to play in the constitutional analysis. As the Court continues to address Internet and technology-related constitutional cases, the importance of considering the capabilities of Internet tools may well be the most impactful legacy of Reno.

     

     

  • Political Parties as Critical Infrastructure?

    Author(s): 
    Kristen E. Eichensehr
    Publication Date: 
    June 22, 2017
    Publication Type: 
    Other Writing

    Former Secretary of Homeland Security Jeh Johnson testified Wednesday before the House Intelligence Committee as part of the House investigation into Russian interference in the 2016 election.

  • Supreme Court Hints That Trump Can’t Legally Block You on Twitter

    Date published: 
    June 20, 2017

    ""It's to the credit of these companies that they have—without admitting it in court—taken the responsibility of the custodians of public debate," said Neil Richards, a law professor at Washington University in St. Louis who specializes in the First Amendment. "We have to decide if that's a question we want to have left to a publicly traded corporation.""

  • The Supreme Court Just Protected Your Right to Facebook

    Date published: 
    June 19, 2017

    ""The Supreme Court appropriately understood the importance of the internet to the way politics and free expression occur right now," says Neil Richards, a professor at Washington University Law School, who specializes in First Amendment law. "We cannot have a functioning First Amendment that doesn't take First Amendment activity in a digital context into account.""

  • The Cross-Border Data Fix: It’s Not So Simple

    The House Judiciary Committee held a hearing yesterday on cross-border data requests, featuring testimony from the Department of Justice, the U.K. government, Google, the Center for Democracy and Technology, state law enforcement, and Professor Andrew Woods. Everyone recognizes the problem: law enforcement outside the U.S. can’t get data for their legitimate investigations from U.S.

  • BREIN v. Ziggo: The Pirate Bay Dies Again

    The Pirate Bay (TPB), that perennial nemesis of copyright holders, is on the ropes again following the CJEU's decision this week in BREIN v. Ziggo. BREIN, the Dutch entertainment industry trade group, sued two ISPs—Ziggo and XS4ALL—seeking a court order to compel them to block the domain names and IP addresses of the legendary torrent sharing site. The Supreme Court of the Netherlands referred two questions to the CJEU: (1) whether TPB’s operation of a searchable index of torrent files violates copyright holders’ right of communication to the public under Article 3(1) of the EU InfoSoc Directive; and (2), in the event that it does, whether the requested injunctions are appropriate against intermediaries under Article 8(3) of the InfoSoc Directive and Article 11 of the IPR Enforcement Directive. This post will focus on the first question, concerning TPB’s liability for unauthorized “communication to the public.”

  • The Texting Suicide Case Is About Crime, Not Tech

    Date published: 
    June 16, 2017

    "And yet, according to Danielle Citron, author of the book Hate Crimes in Cyberspace, there are 21 crimes that have to do explicitly with speech—things like threats, extortion, aiding and abetting, and conspiracy. None of these types of speech are protected by the First Amendment. “If the First Amendment’s a house, where inside speech is protected, threats can’t walk in the door. Neither can extortion. Neither can solicitation of a crime,” Citron says. In other words, not all speech is covered by the First Amendment's proverbial roof."

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