The MacGuffin and the Net: Taking Internet Listeners Seriously

To date, listeners and readers play little more than bit parts in First Amendment jurisprudence. The advent of digital networked communication over the Internet supports moving these interests to center stage in free speech doctrine and offers new empirical data to evaluate the regulation of online information. Such a shift will have important and unexpected consequences for other areas, including ones seemingly orthogonal to First Amendment concerns. This Essay explores likely shifts in areas that include intellectual property, tort, and civil procedure, all of which have been able to neglect certain free speech issues because of the lack of listener interests in the canon. For good or ill, these doctrines will be forced to evolve by free speech precedent that prioritizes consumers

Information Hacking

The 2016 U.S. presidential election is seen as a masterpiece of effective disinformation tactics. Commentators credit the Russian Federation with a set of targeted, effective information interventions that led to the surprise election of Republican candidate Donald Trump. On this account, Russia hacked not only America’s voting systems, but also American voters, plying them with inaccurate data—especially on Internet platforms—that changed political views. This Essay examines the 2016 election narrative through the lens of cybersecurity; it treats foreign efforts to influence the outcome as information hacking. It critically assesses unstated assumptions of the narrative, including whether these attacks can be replicated; the size of their effect; the role of key influencers in targeted groups; and the normative claim that citizens voted against their preferences. Next, the Essay offers examples of other successful information hacks and argues that these attacks have multiple, occasionally conflicting goals. It uses lessons from cybersecurity to analyze possible responses, including prevention, remediation, and education. Finally, it draws upon the security literature to propose quarantines for suspect information, protection of critical human infrastructure, and whitelists as tactics that defenders might usefully employ to counteract political disinformation efforts

Everything You Want: The Paradox of Customized Intellectual Property Regimes

Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of these systems lie in desuetude. This result challenges the conventional wisdom about regulatory capture by special interests, suggesting there is less to fear from legislative capture than most legal scholars believe, in intellectual property and beyond. The puzzle is why, when given free rein to design the rules that govern them, interest groups have done such a poor job in seizing that advantage. This Article brings together two scholarly debates. The first is within intellectual property: should IP doctrines be tailored by industry or comprise rules of general application? The second is within public choice: how risky is regulatory capture by special interests? The Article identifies two key reasons for the ineffectiveness of customized regimes. First, industry groups are fragile, fractal-like coalitions of disparate interests that often fracture between creators and copyists. Groups must choose between narrower, more politically attainable legislation and broader, more rewarding proposals that strain the coalition. Second, interest groups embed current business models and technologies into these systems, making regulation vulnerable to disruptive innovation. It explories how these findings affect proposals for customized regimes for artificial intelligence, weather data, traditional knowledge, privacy, and fashion. The Article concludes with a cautionary tale for interest groups that is otherwise welcome news: customized regimes are often less effective, and less threatening, than previously supposed

Cybersieves

This Article offers a process-based method to assess Internet censorship that is compatible with different value sets about what content should be blocked. Whereas China\u27s Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is increasingly fragmented by nations\u27 different value judgments about what content is unacceptable. Countries differ not in their intent to censor material-from political dissent in Iran to copyrighted songs in America-but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship from values-based perspectives, sporadically addressing key principles such as openness, transparency, narrowness, and accountability. This Article is the first to unite these principles into a coherent methodology. Drawing upon scholarship in deliberative democracy, health policy, labor standards, and cyberlaw, this Article applies this new framework to contentious debates about sales of censorship technology by Western companies, public law regulation of these transactions, and third-party analysis of Internet censorship