Author: ber

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.

Originally written for and cross-posted at Lawfare

Over the past decade, concern over Big Tech bias against conservative speech and speakers has dominated the narrative from the right. From repeated calls to repeal Section 230 of the Communications Decency Act to Donald Trump’s executive order attacking Twitter for censorship and subsequent petition from the National Telecommunications and Information Administration to the Federal Communications Commission (FCC) to reinterpret Section 230 to the passage of state anti-deplatforming laws in Florida and Texas that are now on their way to the Supreme Court, the memetic notion of liberal Silicon Valley tech workers secretly intervening to thwart the interests of conservatives has increasingly manifested in legal challenges to alleged discrimination by technology. The movement has now trained its sights on an unexpected target: Gmail’s spam detection.

Continue reading “The Conservative Bias Panic Comes for Gmail’s Spam Detection” →

Today, I sent a letter to the Senate Judiciary Committee about the Journalism Competition and Preservation Act (JCPA).

I’ve had a number of conversations over the past several months that start with a riff on the same central question:

How should we reform Section 230?

My response is always the same:

What problem or problems are you trying to solve?

Invariably, the response will be something like:

There’s bipartisan consensus that we need to reform 230.

Blurg. In the minds of too many smart folks, the contours of Section 230 have transformed from levers and dials to achieve a wide array of policy objectives—broadly speaking, means for intermediating the flow of user-generated content across Internet platforms—to ends in themselves. What’s the problem? 230. What’s the solution? Reform 230.

This dynamic obscures what are, in my view, a fairly wide range of varying, sometimes overlapping, sometimes disparate, and almost always underspecified problems and solutions that are lurking beneath the tautological “we need to reform 230 because 230” framing. It’s not novel to point out that in developing policy, we ought to identify problems, diagnose root causes, and articulate and iterate on solutions, but we’ve almost completely lost that discipline in 230 conversations as they have begun to drown in the froth of partisan power politics.

230 reform looks like a speedrun of what happened with net neutrality, which took more than a decade to transition from a weighty academic discussion to political charlatanism. We’ve quickly glitched our way past the opening levels where we’re supposed to have some serious discussion about what we’re actually trying to accomplish to the part where Senators are literally holding hearings framed as boss fights:

Nevertheless, I’ll try in this post to distill some themes that have come up in the course of a bunch of “reform 230” conversations. I hoped when I started that perhaps I could pull together an effective taxonomy of problems and solutions, but as I wrote, I became more convinced (and dismayed) that much of what’s being proposed is not much more than flinging things at the wall to see what sticks. There are some good ideas emerging from the primordial ooze, but Cam Kerry’s observation that we need serious thought- and consensus-building before we chaotically rend the Internet asunder is right on the money.

Continue reading “So You Want to Reform Section 230” →

In the spirit of Mike Masnick’s Hello! You’ve Been Referred Here Because You’re Wrong About Section 230, you’ve been referred to this post because you improperly cited Section 230 and someone felt you needed to be corrected by your pedantic neighborhood telecom law professor. So here we go:

Continue reading “Section 230 of… what?” →