Social Media, Manipulation, and Violence

This essay addresses an even darker side to social media: its use for manipulation on scales both small and large and its direct and indirect ties to violence. Increasingly, social media is used as a tool to foment violence, particularly in regions of the world where access to the Internet is otherwise limited. Even when a social media site is not itself an instrument to foment violence, it may have the effect of encouraging and validating the extreme views that result in violence. What is the role of social media sites in containing their use for such nefarious purposes, and how should the law govern them? Should such sites be liable for failing to take down misleading or inaccurate content or for allowing hate speech? If not, what are other options for controlling its misuse

Social Media, Manipulation, and Violence

This essay addresses an even darker side to social media: its use for manipulation on scales both small and large and its direct and indirect ties to violence. Increasingly, social media is used as a tool to foment violence, particularly in regions of the world where access to the Internet is otherwise limited. Even when a social media site is not itself an instrument to foment violence, it may have the effect of encouraging and validating the extreme views that result in violence. What is the role of social media sites in containing their use for such nefarious purposes, and how should the law govern them? Should such sites be liable for failing to take down misleading or inaccurate content or for allowing hate speech? If not, what are other options for controlling its misuse

Challenging the Law Online: Southwestern Law Review Symposium on Nancy Kim\u27s Wrap Contracts

In this essay, the author suggests the role of public opinion could be better harnessed to galvanize opposition to oppressive online terms. Because of the way websites have used this power to impose their own territorial laws, ordinary contract doctrine is ill-equipped to handle any type of review of those laws’ legality. Instead, as Professor Kim notes, other solutions are necessary that focus on true agreement to terms, the existence of choice, and substantive limits on websites’ ability to dictate the law

Privacy in Discovery after Dobbs

Modern discovery in civil courts has been criticized for its overbreadth and expense, leading to a series of changes in the Federal Rules of Civil Procedure focused on proportionality. At the same time, there has been increasing interest in privacy in civil discovery, given the rise in litigants’ requests for broad production of social media, cell phone data, and wearable technology. Aside from other compelling reasons to establish privacy bounds for discovery, there are two developments, both deriving from the Supreme Court’s recent decision in Dobbs, that make this issue crucial. First, by overruling Roe v. Wade, Dobbs deals a blow to the constitutional right to privacy, which protects against unfettered discovery. Second, with legislatures across the country rushing to criminalize abortion, women and those who support them face threats that discovery will be used to uncover evidence that they have violated those laws. This article argues that (1) the constitutional right to privacy against compelled disclosure of personal information survives Dobbs. While Roe did provide precedent for privacy protection in discovery, Dobbs does not implicate the privacy interest in shielding from disclosure information concerning intimate matters. (2) In addition, other Supreme Court precedent supports the right to privacy against disclosure of intimate information, including reproductive matters. (3) Third, the right to privacy is protected by reference to other federal legislation and public policy, including FOIA and HIPAA protections. (4) Finally, state constitutional privacy, privileges and case law are not implicated by the Supreme Court decision in Dobbs, and provide protection in state law cases. Together, these principles give courts strong precedent to use their discretion to deny requests for discovery of information whose relevance is outweighed by privacy interests

A Right to Privacy for Modern Discovery

A Right to Privacy for Modern Discovery Recently, the Supreme Court found that a person has a Fourth Amendment right to privacy in historical cell phone records because of the comprehensive nature of the compilation they provide. As with detailed, encyclopedic GPS information, the nature of these chronicles of their users’ lives implicates privacy despite the traditional notion that a person lacks a privacy interest in his or her location or movements. The comprehensive nature of that location information also led to the Court’s rejection that the information lost its private nature because it was in the hands of a third party. The view that individual pieces of information which would not implicate privacy transform into a “mosaic” when compiled into a broad picture of an individual’s life over a span of time, was first expressed by the Supreme Court in 1989 in the context of a FOIA exemption. The Court found that, despite the fact that individual items of a person’s “rap sheet” are publicly available, their combined power when gathered together into a single, comprehensive dossier deserves privacy protection.These decisions have direct relevance to privacy in another realm that is being tested by changes in technology: civil discovery. Here too the nature of discovery itself is very different from a pre-digital set of communications or files in the hands of a litigant. Discovery now includes information prepared automatically by a device that the litigant wears or carries. It includes records of all manner of interactions with websites and applications, and implicates health, finances, sexuality, and other aspects of a litigant’s life. In addition, there is clear precedent for protecting civil discovery when requests implicate federal statutory protections like FOIA’s exemptions.This article analyzes caselaw reaching back to the adoption of the Federal Rules of Civil Procedure to find a strong precedent for protection of privacy in discovery based on Supreme Court doctrine and public policy represented in federal and state statutes. The article traces this history to current subjects of e-discovery – cell phone data, social media content, wearable devices and so on – whose scope and subject matter implicate broad privacy concerns. Recent Supreme Court doctrine adopting the mosaic theory of privacy has direct application to discovery requests for modern digital chronicles of a person’s life