Can the FTC Protect Us From Fake News?

In September 2016, the Second Circuit handed down its decision in FTC v. LeadClick Media, LLC, holding the operator of an affiliate-marketing network liable for the fake news published by its affiliates. This case could serve as a tool in combatting fake news stories that have plagued social media and caused real-world problems (like Pizzagate) in recent years. While this Second Circuit decision is unlikely to solve the problem of fake news stories on social media, it is a step in that direction. The Case In the case, a generator of fake news was denied protection of the Communications Decency Act. The CDA protects Internet service providers from being held liable as publishers of material posted on their sites by third parties. Until 2011, LeadClick operated an affiliate-marketing network to provide advertising to online businesses. The affiliates advertised in various ways, including by creating advertising websites. In August 2010, LeanSpa, a company that sold purported weight-loss and colon-cleanse products over the Internet, hired LeadClick to provide advertising through its affiliate network. Some of these affiliates created what the court called “fake news sites,” which looked like genuine news sites with reporters discussing, what they claimed to be, their own experiences and comments from satisfied users. However, all of the content on these websites was fabricated. The court held that LeadClick was not entitled to immunity under CDA §230(c)(1) because CDA had helped develop the deceptive content and was not merely a publisher of third party content. Without CDA immunity, LeadClick could be held liable for its affiliates’ false and deceptive advertising practices. Our Salvation? Hardly. By denying LeadClick CDA immunity, the...

Unresolved Issues for Affirmative Consent Applications

Not long ago, California enacted legislation requiring college students to obtain explicit consent before proceeding with a sexual encounter. California is not alone in this push; universities across the nation have been grappling with issues of sexual assault and, consequently, rewriting their policies to address them. Affirmative Consent particularly is a popular policy that is likely to continue gaining traction. SB 967 mandates that, rather than proceeding until a partner says “no,” participants should seek an explicit “yes” throughout the encounter. The affirmation does not need to be verbal. It may be communicated a variety of ways, even via an enthusiastic nod or smile, as long as it is unambiguous and ongoing throughout the act. To further assist with resolving possible uncertainty, several applications have been developed. But for a variety of reasons, the current technology currently lags behind the changing legal terrain.  Shortly after SB 967 was enacted, Good2Go was launched. Although short-lived, the app was aimed at facilitating consent between students, but was derided for a variety of issues. Ironically, the app simply asks if the parties were “Good2Go?” and failed to even mention the word “sex”. The specific acts that are being consented to are very unclear. The participants may come away with very different expectations. Additionally, the app keeps a private record of all its sexual consent records, ostensibly to be accessed by law enforcement. The most substantial issue with the app (and a consent app in general) is that it fails to address the fluid nature of consent. While it does give a warning that “yes” can changed to “no” at anytime, the app...

California Governor Shoots Down Drone Privacy Bill

Hobbyists and drone industry giants were relieved last week when California Governor Jerry Brown vetoed legislation that would have severely limited drone operation in the state. California Senate Bill 142, which passed both houses of the legislature in late August, aimed to prohibit drone flights below 350 feet over private property without permission from the landowner. The bill would have allowed a property owner to file trespassing charges against operators flying aircraft over his or her property in violation of the elevation restriction. Under the Federal Aviation Administration’s proposed rules for drones, commercial operation has a ceiling of 500 feet and recreational use is capped at 400 feet. The bill, therefore, would have limited operation to a relatively narrow band of airspace and posed challenges to flying over large portions of the state. As popularity for unmanned aircraft has grown, concerns over their operation have risen as well. Chief among these fears has been the collision hazard that drones pose to traditional, manned aircraft. California Senator Hannah-Beth Jackson, author of the bill, cited private property rights and privacy concerns as the impetus for the proposed legislation. She and other proponents of the measure hoped that California would join many other states in protecting individuals from drone-operating voyeurs. In his veto statement, Governor Brown recognized the concerns addressed in the bill, but said that he feared the proposal “could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.” The Consumer Electronics Association, a trade group that lobbied heavily on the drone industry’s behalf, was pleased with the decision. “With this veto, the...

Big Data and the Fall of Personally Identifiable Information

There has been no shortage of “Big Data” based start-ups in the last decade, and that trend shows no sign of slowing down. As computing power and sophistication continues to increase, the ability to process large sets of information has led to increasingly pointed insights about the sources of this data. Take Target for example. When you pay for something at Target using a credit card, not only do you exchange your credit for physical goods, you also open a file. Target records your credit card number, sticks it to a virtual file and begins to fill that file with all sorts of information. Your purchase history is recorded: what you buy, when you bought it, how much you bought. Every time you respond to a survey, or call the customer help line or send them an email, Target is aware. Anytime you interact with Target, the data and meta-data that characterize that interaction are parsed carefully and stored as Target’s institutional knowledge. But it doesn’t end there. As diligent as Target may be in monitoring your interactions, there will inevitably be holes. But fear not! Instead of settling for an inadequate picture of who you are, Target can just buy the rest of it from the other people you do business with. “Target can buy data about your ethnicity, job history, the magazines you read, if you’ve ever declared bankruptcy or got divorced, the year you bought (or lost) your house, where you went to college, what kinds of topics you talk about online, whether you prefer certain brands of coffee, paper towels, cereal or applesauce, your political leanings,...

Obama Administration to Weigh in on Google v. Oracle Java Dispute

Last month, the Supreme Court invited input from the Department of Justice regarding the ongoing Java dispute between Google and Oracle, asking for advice on whether the Court should hear the case. According to the Court’s memo, U.S. Solicitor General Donald Verrilli, Jr. “is invited to file a brief in this case expressing the views of the United States.” Technology Analyst Al Hilwa calls this a “true 2015 nail-biter for the industry” because “[t]his is a judgment on what might constitute fair use in the context of software.” The dispute between Google and Oracle began in 2010, when Oracle sued Google seeking $1 billion in damages on the claim that Google had used Oracle Java software to design the operating system for the Android smartphone. Google wrote its own version of Java when it implemented the Android OS, but in order to allow software developers to write their own programs for Android, Google relied on Java Application Programming Interfaces (“APIs”). These APIs are “specifications that allow programs to communicate with each other,” even though they may be written by different people. Oracle alleged that Google copied 37 packages of prewritten Java programs when it should have licensed them or written entirely new code. Google responded with the argument that such code is not copyrightable under §102(b) of the Copyright Act, which withholds copyright protection from “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in [an original work of authorship].” Google also argued that the copied elements were “a key part of allowing...

FCC Aims to Flex Muscle to Remove State Barriers to Municipal Internet

On June 10, 2014, FCC Chairman Tom Wheeler published an op-ed championing municipality-funded broadband. Noting Chattanooga, Tennessee’s past as a 19th century railroad boom town, he juxtaposed the city’s history with its recent decision to fund its own gigabit-per-second infrastructure: “Chattanooga’s investment has not only helped ensure that all its citizens have Internet access, it’s made this mid-size city in the Tennessee Valley a hub for the high-tech jobs people usually associate with Silicon Valley. Amazon has cited Chattanooga’s world-leading networks as a reason for locating a distribution center in the area, as has Volkswagen when it chose Chattanooga as its headquarters for North American manufacturing. Chattanooga is also emerging as an incubator for tech start-ups. Mayor Berke told me people have begun calling Chattanooga “Gig City” – a big change for a city famous for its choo-choos.” Mr. Wheeler then delivered his punchline: “I believe it is in the best interests of consumers and competition that the FCC exercises its power to preempt state laws that ban or restrict competition from community broadband. Given the opportunity, we will do so.” Fast-forwarding to the present, Chairman Wheeler just announced on Monday that he is circulating a proposed Order to his fellow FCC commissioners encouraging FCC preemption of state laws that stymie municipality-sponsored broadband projects via its granted authority under Section 706 of the Communications Act. The announcement comes a few weeks after President Obama himself pushed for increased support of community internet, with the White House publishing a detailed policy report extolling its virtues. Proponents applaud the move as facilitating the growth of high-speed internet in communities where major...