Articles

Encounters between networked information technologies and law tend to be framed as examples of what happens when an irresistible force meets an immovable object. For example, some argue that networked information and communication technologies are technologies of freedom, able to help human civilizations solve all of our most pressing problems—if only the law will stop […]

Content moderation is such a complex and laborious undertaking, it is amazing that it works at all and as well as it does. Moderation is hard. This should be obvious, but it is easily forgotten. Policing a major platform turns out to be a resource intensive and relentless undertaking; it requires making difficult and often […]

Facebook and YouTube have promised to take down Tide Pod Challenge videos. Easier said than done. For one thing, on the Internet, the line between advocacy and parody is undefined. Every meme, gif, and video is a bit of both. For another, these platforms are structurally at war with themselves. The same characteristics that make […]

It’s not easy being an Internet giant. Once the darlings of the innovation economy, the major technology companies—Amazon, Google/Alphabet, and Facebook—have in recent months found themselves suddenly on the back foot. From the firestorm surrounding the proliferation of “fake news” and hate speech on Facebook and YouTube, to Google’s long-burning dispute with Yelp over the […]

In this essay I discuss the political economy of data-driven platforms in terms of monopolies and monopsonies, arguing that the concentration of buying and selling power builds on and extends a pseudo-omniscient data architecture that feeds on an increasingly seamless data ecosystem. As the mathematical underpinnings of data-driven architectures are further extended into the hardware […]

As we transition to a data-driven economy, we are witnessing the emergence of data-opolies—companies that control a key platform, which, like a coral reef, attracts users, sellers, advertisers, software developers, apps, and accessory makers to its ecosystem. Apple and Google, for example, each control a popular mobile phone operating system (and key apps on that […]

A handful of tech platforms mediate a large and growing share of our commerce and communications. Over the last year, the public has come to realize that the power these firms wield may pose significant hazards. Elected leaders ranging from Senator Elizabeth Warren (D-MA) to Senator Ted Cruz (R-TX) have expressed alarm at the level […]

In December 2017, under the Trump administration, the Federal Communications Commission (FCC or Commission) repealed its 2015 network neutrality rules and abdicated its role to protect consumers and competition in the broadband market. This widely criticized decision, coupled with the enormous and growing power of online platform companies like Amazon, Facebook, and Alphabet’s Google, raised […]

Zero-rated services provide an on-ramp to networked resources that are otherwise beyond many users’ reach. Through such services, wireless service providers offer free access to a curated set of popular applications on the public Internet. Its proponents assert that zero-rated services provide an invaluable introduction to online applications and content, which, in turn, will increase […]

Platform regulation has become the cause celebre of technology regulation: a call to regulate the intermediaries who provide platforms for networked digital services. These include the GAFA giants: Google, Amazon, Facebook, and Apple. Many policy entrepreneurs are peddling solutions as the policy cycle turns, in a classic Kingdon case of “solutions chasing a problem.” Yet networks are not […]

In 1986, science and technology studies scholar Langdon Winner wrote, “The issues that divide or unite people in society are settled not only in the institutions and practices of politics proper, but also, and less obviously, in tangible arrangements of steel and concrete, wires and transistors, nuts and bolts.” To that list, we might add the […]

The metaphor of the marketplace of ideas is under siege with its detractors pointing to Facebook, Twitter, and other social media sites as proof positive that the model is no longer operative. The surprising outcome of the 2016 U.S. presidential election and the concomitant focus on the scourge of “fake news” have placed Internet platforms at the center of […]

From Cloudflare’s headline-making takedown of the Daily Stormer to YouTube’s summer restrictions on LGBTQ content, 2017 was a banner year for platform censorship. Companies—under pressure from lawmakers, shareholders, the press, and some members of the public—ramped up restrictions on speech by adding new rules, adjusting their still-hidden algorithms, and hiring more staff to moderate content. They […]

Backpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.”This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing […]

In 2017, Peter Daou launched “Verrit,” a partisan news site targeted to Democratic voters disappointed with the results of the 2016 election. The site consists of single quotations, facts, and statistics, each formatted as a graphic and labeled with a unique “identification code” to indicate authenticity and accuracy. For instance, a Verrit article titled “Where […]

Election meddling, state-sponsored disinformation campaigns, and the potential manipulation of platform users is provoking intense reactions to technology around the world. The outrage following news reports that the data of millions of people were used without their knowledge to train sophisticated targeting tools that may have manipulated voters suggests that consumers expectations of how their data […]

In the absence of a technology-focused regulator, diverse administrative agencies have been forced to develop regulatory models for governing their sphere of the data economy. These largely uncoordinated efforts offer a laboratory of regulatory experimentation on governance architecture. This symposium essay explores what the Consumer Financial Protection Bureau (CFPB) has done in its first several […]

To tame the, sometimes, harmful power of enormous platforms, we need to reconsider the mathematics of regulation. The law tends to treat the growth of a company linearly, while the power and harm of online activity increases at a much faster rate. We need to scale up the mathematics of regulation to deal with many […]

  Search engines no longer merely shape public understanding and access to the content of the World Wide Web: they shape public understanding of the world. Search engine results produced by secret, corporate-curated “search scripts” of algorithmic and human activity influence societies’ understanding of history, and current events. Society’s growing reliance on online platforms for […]

INTRODUCTION San Francisco is the home of the platform economy. Uber and Airbnb—the poster children of that economy—launched their initial products in the city and used the feedback garnered from Bay Area users to perfect their business models. These and other platform companies also started to build their loyal user bases with Bay Area consumers. […]

Before 2016, blockchain technology was known, if at all, as the technical underpinnings of virtual currency. However, in the past year, blockchain technology has come into its own. It is now seen as a groundbreaking advance that can both reduce frictional costs in existing transactional systems and enable new, previously-unworkable models of social and commercial […]

A new technology called “smart contracts” has emerged. What makes these legal agreements innovative is that their execution is made automatic through the use of computers. This Article examines smart contracts from a legal perspective. Specifically, this Article explains smart contracts’ operation and place in existing contract law. It introduces a distinction between strong and […]

The Federal Rules of Evidence were originally established to create uniformity in evidence law by providing guidance for every evidentiary problem that could be reasonably expected to occur at a trial. The rules are firmly grounded in the tangible, as courts typically deal with the concrete concerns posed by physical evidence or the testimony of […]