Author: ber

After the maelstrom of Internet law news from the last week, the Supreme Court denied cert in Doe v. Snap, a brewing effort out of the Fifth Circuit to get the Court to revisit Section 230. Of note, there’s yet another dissent from Justice Clarence Thomas (now joined by Justice Neil Gorsuch) lamenting the Court’s refusal to take up 230 after the collapse of Gonzalez v. Google.

Continue reading “SCOTUS Passes on 230 Review in Doe v. Snap” →

Whew—after years of tortured litigation over the Texas and Florida legislatures’ efforts to impose carriage mandates on social media platforms, a wild circuit split between the Fifth and Eleventh Circuits, and the platforms’ efforts to force the Supreme Court to finally make a definitive ruling about how the First Amendment applies to the Internet, the Court has finally issued a ruling in NetChoice. And the answer is… we’re going to get another long round of litigation. So what happened?

Continue reading “NetChoice’s First Amendment Litigation Adventures Approved for a Second Season” →

Like the proverbial dog chasing the car, the Supreme Court issued an opinion in Loper Bright v. Raimondo (RIP, Relentless 🤘) that finally catches up with the conservative wing’s dream of dismantling the administrative state and bites down hard on the bumper by eliminating Chevron deference. Being able to line-item veto an agency under the major questions doctrine apparently wasn’t good enough. Instead, Chief Justice Roberts decided that the judiciary needs to review every single rulemaking de novo, which will inundate the judiciary with esoteric questions about every corner of the American regulatory state, with only the help of Skidmore deference if the egghead bureaucrats at the agency happen to say something really smart. Oof.

While a million gallons of ink will be spilled about the immense consequences for American society, there are some special consequences for telecom and the obscure wad of law-and-policy bubble gum holding together America’s Internet infrastructure. The Communications Act of 1934 includes some of the broadest and vaguest delegations to an agency—the Federal Communications Commission—in all of American government, sometimes spelled out in commands no more specific than doing whatever “the public convenience, interest, or necessity requires.” The FCC has many decades of regulations developed in reliance on Chevron and similar doctrines, and challenges are about to come out of the woodworks notwithstanding Loper Bright’s promise “not [to] call into question prior cases that relied on the Chevron framework.” A lot of telecom lawyers are about to bill enough hours to buy a beach house.

Continue reading “Loper Bright and the Impending Brand X / Net Neutrality Admin Law Demolition Derby Apocalypse” →

Update (Nov. 18, 2024): looks like the government declined to seek review of the DC Circuit’s decision, and the proceeding‘s now back at the DC (federal) District Court, where the challengers have filed for summary judgment.

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Back in October, I wrote up the U.S. District Court for the District of Columbia’s decision in Medical Imaging & Technology Alliance v. Library of Congress, which effectively would have excluded important copyright policy matters conducted by the Library of Congress from judicial review. The district court purported to immunize the exemptions promulgated by the Library and the U.S. Copyright Office from the anti-circumvention measures of 17 U.S.C. § 1201 against both Administrative Procedure Act and constitutional separation-of-powers challenges.

On June 7, the DC Circuit Court of Appeals issued a surprising ruling vacating the district court’s decision. Judge Rao and Judge Edwards, over a dissent from Judge Childs, ruled that the triennial review indeed was subject to the APA and remanded to the district court for review of the exemption grant. In this post, I’ll try and tease apart how we got here and where things go from here.

Continue reading “The Future of Copyright Rulemaking” →

Note: the information offered here, like everything else on this blog, is for general educational purposes only and you shouldn’t treat it or rely on it as legal advice!

Policy practitioners and lawyers who might have filed comments at other agencies that rely exclusively on the Federal Register and regulations.gov often get stymied when it comes to the Federal Communications Commission. The FCC uses its own proprietary filing and document management systems for managing rulemakings that can be a little inscrutable if you haven’t encountered them before, so here are a few quick tips I acquired over years of submitting FCC filings when I was active as a clinical professor. (Note that this discussion is specific to commenting on public rulemakings; the FCC has a whole raft of other databases and systems for various other things that I won’t cover here.)

Continue reading “A Quick and Dirty Guide to Researching FCC Dockets” →

Back in March, the U.S. District Court for the District of Columbia released a significant (and very bad) opinion, Medical Imaging & Technology Alliance v. Library of Congress, that may have significant implications for the crafting of U.S. copyright policy and oversight. If the court’s reasoning stands on appeal, it effectively provides Congress with a sneaky way of marshaling copyright policymaking through the Library of Congress that renders it effectively immune from judicial and executive oversight.

Continue reading “The Chameleonic Library of Congress” →

Just a quick note that I’m delighted to be joining the author team with Jerry Kang and Alan Butler for Edition 7.5 of Communications Law and Policy: Cases and Materials. This is the book I’ve always used to teach Telecom Law, it informs how I think about communications law problems, and even better: it’s now available for free under a CC-B-NC-ND license. I’m looking forward to being able to iterate on this in the coming years.

As the reaction to the Supreme Court’s adventure in First Amendment Lochnerism in 303 Creative v. Elenis begins to unfold, I want to make a brief intervention on the issue of stipulated facts. In my view, the majority strips the context of some very banal stipulations by the Colorado defendants, unfairly playing “gotcha” to transform the stipulations into legal concessions and conceal the breadth of its holding.

Continue reading “On Stipulations and Expressiveness” →

In the lead up to this week’s doubleheader episode of Supreme Court Internet Law Adventures in Gonzalez and Taamneh, there has been a ton of attention on the potential impacts of altering the contours of Section 230—both for good and for ill—on Internet platforms and users. But one thing that hasn’t been quite so obvious is the impact on the courts, and I think that was really in play during the oral arguments.

Section 230, enacted in 1996, has allowed the courts to accumulate more than a quarter century of interpretive debt. When it comes to the Internet law pattern of “(a) apply [existing law x] to [new user-generated content platform y] and (b) evaluate what the First Amendment has to say about it,” we have shockingly little case law. This is because Section 230 almost always obviates both questions and gives us an outcome in the platforms’ favor.

As a result, we have almost no idea how huge swaths of law—e.g., tort, contract, civil rights, state criminal law, etc.—might (or might not) be applied to user-generated content platforms as a threshold matter. We have almost no idea how the First Amendment might apply. This means that rugpulling Section 230, whatever your policy preferences, is going to create an enormous amount of work for courts.

(How much work is a hard empirical question. But we can look at 230’s exceptions for indicators—and the body of law for platform copyright liability, Section 512, has generated an enormous degree of attention and litigation over the past quarter century.)

Moreover, the work isn’t going to be simple. Because we haven’t had the benefit of evolving a common law over the course of the last quarter century, courts won’t have the benefit of applying law to the primitive Internet platforms of 1996. They’ll have to start from scratch with today’s hyper-complex, multinational, ubiquitous congomerates, the obscure denizens and startups of the Internet’s long tail, and everything in between.

I don’t like to make predictions about how Supreme Court cases will come out, and it’s always hard to surmise what, if anything, oral arguments mean for the ultimate outcome. But I did get a sense of awareness unfolding among the Supreme Court’s Justices this week of what the profound stakes of a broad alteration of Section 230’s contours might be—not just for the platform defendants in the cases—but for the judicial system that the Justices sit atop.

Some personal news, as they say: starting fall of 2023, I’m joining the tenure-track faculty at Colorado Law, transitioning out of the role that I’ve held for the last decade directing the Samuelson-Glushko Technology Law & Policy Clinic. Most importantly: we’re hiring a new director of the Clinic—please apply to come work with me and the amazing crew of tech and IP scholars and programs at Colorado Law!

A brief reflection: I feel incredibly lucky to have made a long and strange journey from being a not-quite-sure-what-I-wanted-to-do-with-my-life student at Colorado Law through a transformative experience in the Clinic (yep—I was a student attorney there too!), a tour of duty in DC at Georgetown’s Institute for Public Representation, and a decade directing the Clinic before moving into this new position. Academia truly is a team sport; the main thing that has come to mind reflecting on the last 15 years is the amazing community that surrounds every part of my work. Every time I start compiling a list of everyone to whom I owe a significant debt of gratitude, I panic that I’m going to leave someone out.

Nevertheless, I can’t help but single out Paul Ohm, whose teaching inspired me to contemplate that maybe I could be a law professor; Paul has believed in me and mentored and supported me in every step of shaping that vague notion into an actual (however improbable) career trajectory. I also can’t help but single out Margot Kaminski, who has been extraordinarily generous with her time, mentorship, and friendship in helping me find my academic voice, among many other things. Without Paul and Margot, I know I wouldn’t be here today; I’m incredibly grateful to them—and to everyone else who has opened doors and offered advice, feedback, insights, camaraderie, collaboration, collegiality, and support over the last 15 years.

Last thing: I’m committed to paying forward the many chances that folks took on me over the years; my virtual door is open if there’s anything I can do to help you on your journey. Please don’t hesitate to reach out; I’m always happy to chat with folks about tech policy, student notes, clinical teaching, academia, or whatever else.