Legal Frontiers in Digital Media Podcast

The European Union’s General Data Protection Regulation has been in effect for nearly a year, and California’s expansive Consumer Privacy Act is set to go into effect in 2020. This panel of regulators, in-house and outside counsel will review enforcement trends that have the greatest impact on online platforms, and actions that platforms have taken to comply and to reduce their risk. The panel will also address the new requirements of the California CPA and the potential impact of the law on advertising supported business models. In addition, this session will discuss the policy implications of new legislation being proposed in Congress to federally regulate digital privacy in the U.S. The panel discussion will include:

• A review of the enforcement actions during the first year of GDPR, and what they reveal about the challenges of obtaining consent under GDPR

• Challenges of responding to Data Subject Access Requests, Correction and Deletion requests and how organizations have responded

• The impact of Brexit on GDPR compliance plans

• The differences and similarities of CCPA and GDPR; and

• Handicapping the (many) pending amendments to the CCPA

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This session will take an in-depth look at legal strategies for protecting anonymous speech online from the perspective of the platforms that provide the channels of communication, as well as from users seeking to maintain their online anonymity. A panel of expert inside and outside counsel will consider:

• What are the legal standards for maintaining user anonymity when a platform is served with a subpoena – how do they vary from jurisdiction to jurisdiction – and differ depending on the nature of the action (e.g., defamation vs. copyright vs. criminal investigation)? Should the standard be codified?

• How do efforts to identify defendants through indirect means (e.g., by IP address) affect courtroom battles over anonymity?

• What is the duty of platforms to their anonymous users? How should platforms address the issue of user notification when responding to subpoenas, and under what circumstances must (or should) a platform withhold such notice?

• For platforms maintaining a forum for anonymous speech, what are the best policies with respect to data collection and retention of user information, balancing the desire to protect user identity with the need to operate and protect the platform and generate advertising revenues?

• What assurances should (or should not) be made in the platform’s terms of service with respect to protecting anonymity? Do those assurances affect whether a user can remain anonymous?

• What are the practical mechanics of going into court – either on behalf of the platform or on behalf of an anonymous user; and what are the challenges to attaining a court’s acceptance of an attorney’s appearing on behalf of the anonymous user? Can anonymity be maintained even if the subpoenaing party meets its burden to overcome a motion to quash? What are the mechanisms at a court’s disposal to do so?

• Are anonymity rights litigated haphazardly, and is this bad for development of the law? What if the platform does not want to devote the resources to moving to quash in a particular case, or the user does not have the resources to do so? How can anonymous users find competent lawyers to help them?

• How can we ensure anonymity rights are adequately protected when foreign litigants seek to unmask users in American courts via federal ex parte applications for discovery?

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Does one infringe a copyright by in-line linking? If so, how much will our internet be shrinking? Just how pervasive are in-line linking, embedding and framing in today’s digital media? A content development and distribution pro first explains the present state before envisioning a hypothetical internet without these tools. Then counsel who won the two leading cases dive deep into the controversy: does copyright law hold embedding a link to be an infringing “display” whether or not the work is hosted on the servers of an independent platform (Goldman v. Breitbart)? Or does infringement depend on actually hosting a copy of the work, rather than pointing a browser to another internet location (Perfect 10 v. Amazon.com)? Would other defenses (like DMCA or implied license) bail out current business models? Has the Supreme Court’s indeterminate Aereo decision now come home to roost? And what is the best advice for an anxious client in the current environment?

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New machine-learning technology is allowing even amateur video editors to conjure videos that convincingly replace people’s faces with those of others – frequently unwitting celebrities – to both creative and destructive ends. This digital face-swapping tech has been used for satirical internet videos and perhaps most famously to recreate a younger Princess Leia in the Star Wars film, Rogue One. In their most provocative form, these so-called “deepfakes” digital AI tools have been used to create X-rated content featuring the faces of popular Hollywood actresses grafted on to porn stars’ bodies. The videos have already engendered a firestorm that has led to bans on even freewheeling platforms like Reddit and Pornhub. This short presentation will explore whether the law can keep up with this controversial form of speech, and whether a balance can be struck to protect the reputational and privacy interests of unwitting subjects while upholding First Amendment principles.

• Do existing laws governing defamation, privacy, right of publicity, copyright, or the intentional infliction of emotional distress, or anti-revenge porn laws, protect the unwitting subjects of “deepfakes” videos?

• How does the legal analysis change when fake videos are passed off as real? When celebrities are involved?

• Will this technology make it harder to verify audiovisual content, and easier to generate fake news?

Presenter:

The Computer Fraud & Abuse Act was enacted by Congress in 1986, primarily as a tool to criminally prosecute hackers, in an era before the web and online publishing, when the internet was mostly used by a small universe of academics, government and military staff. Although the CFAA has been updated by Congress several times, its meaning in the modern age of universal internet access and porous digital borders has eluded courts as to what it means to access a computer without authorization. This panel will attempt to make sense of the various, often contradictory, judicial rulings in this area, and debate a better way forward which balances platforms’ private property right to its data with the right of public access to online information. The session will consider:

• Can platforms deny other companies the right to access and process otherwise public information on their sites, and what are the rights of aggregators to gather news and process information by scraping other sites?

• What technical measures, such as password protection, is sufficient to enjoy the protections of the CFAA?

• Reconciling CFAA decisions in Power Ventures & Craigslist v. 3Taps with contradictory rulings in Hi-Q and others.

• Is there a kind of “public forum doctrine” emerging on private social media in light of notions of mandatory access and free speech protections arguably extended to privately-owned social media platforms in other cases.

• What should a modern update or replacement of the CFAA look like?

Panelists:

It has been approximately a year since the Uber scandal uncovered a culture of sexual harassment and gender bias in the tech community. Silicon Valley still faces a dearth of female founders and women are still underrepresented at executive levels in tech companies and law firms. But is the outlook showing signs of improvement? What steps are tech companies taking to reduce gender bias and discrimination? How can the legal community contribute to increased diversity? This session will examine the current climate and highlight the strides the tech community is making to improve the future of women in tech.

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Whether by foreign governments like Russia, or by fraudsters and other individuals wishing to influence opinion and actions on the internet for their own ends, disinformation campaigns have become an acute problem that social media sites are facing calls to address. Beginning with a tech tutorial on how fake news and other misinformation is created and distributed in an artificially viral way and how bots and fake users are employed to manipulate people, this session will cover the roles of platforms in identifying and combatting disinformation campaigns. The discussion will include:

• Virality online can be good or bad, but how do we distinguish between the good and content that malevolently manipulates or undermines democracy?

• How should platforms fight back against disinformation campaigns, including future campaigns to influence our elections.

• As a platform, when do you have a legal obligation to act or to report actors manipulating your site?

• What obstacles – legal, practical, and otherwise – do platforms face in addressing these issues?

• A certain segment of users don’t care that they’re receiving fake news, and won’t necessarily rely on verification tools even if they’re made available. What’s the proper response from platforms to this challenge?

• What is the appropriate role of governments in facing these issues and how can platforms better work with governments on this challenge?

Panelists:

Increasingly, platforms have been under pressure on a number of fronts to take down, moderate and/or stop hosting objectionable groups and content, such as content originating from white supremacists, alleged sex traffickers, terrorist groups and the like. The pressure is coming from political forces seeking legal reforms, such as the recently passed Section 230 exception for sex trafficking (FOSTA) and EU regulations demanding accelerated removals; as well social and public-relations pressures, e.g., public outrage over Neo-Nazi groups online after the violence in Charlottesville. As a result, platforms are shifting to a more hands-on approach to editorial control, attempting to refine their own values and community standards.

• What role do hosting services like CloudFlare and social media sites and other platforms have in excluding hate groups, and is there a danger in private companies becoming upstream speech intermediaries?

• What are the consequences for platforms of FOSTA’s enactment, and is the rest of Section 230 under increasing threat?

• What are the jurisdictional boundaries of removal orders from foreign countries, and what standards should platforms follow in deciding whether to obey orders from foreign removal orders from foreign countries?

• What pressures are coming from Europe to accelerate the removal of content, and what effect does that have in U.S.?

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