Regulating Habit-Forming Technology

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a highly addictive slot-machine- like mechanic that is common in online video games. The Federal Trade Commission has also announced an investigation into the practice. As public concern mounts, it is surprisingly easy to envision consumer regulation extending beyond video games to other types of apps. Just as tobacco regulations might prohibit brightly colored packaging and fruity flavors, a social media regulation might limit the use of red notification badges or “streaks” that reward users for daily use. It is unclear how much of this regulation could survive First Amendment scrutiny; software, unlike other consumer products, is widely understood as a form of protected “expression.” But it is also unclear whether well-drawn laws to combat compulsive technology use would seriously threaten First Amendment values. At a very low cost to the expressive interests of tech companies, these laws may well enhance the quality and efficacy of online speech by mitigating distraction and promoting deliberation

The Doctrinal Toll of Information as Speech

Courts over the past two decades have reached a near consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake other spheres of non-expressive economic activity in the Internet’s image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a future-shocked Lochner for a highly informatized and thoroughly deregulated economy. This Article argues that the theory of these lawsuits poses little genuine risk to the regulatory state. Instead, the threat is to the clarity and strength of core First Amendment principles. In theory, courts will test regulations of technologies such as digital currencies under the same strict standards that define mainstream First Amendment doctrine. But pragmatic concerns about the government’s ability to regulate economic affairs will put pressure on the same courts to dilute those standards in practice. Over time, these diluted strains will find their way back to the mainstream of First Amendment litigation. The Article concludes with recommendations to mitigate the damage

The Replicator and the First Amendment

As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years—sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights. This Article is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review article to address the intersection of 3D printing with free speech beyond the specific context of 3D-printed guns. I show that as “replicator” technologies pick up, the distribution of digital blueprints will begin to replace the distribution of goods as a central regulatory concern. This transition, in turn, will inspire First Amendment challenges to efforts by the government to restrain or penalize the distribution of the files. A handgun licensing law, for instance, might be said to violate the First Amendment prohibition against prior restraints if it were applied against a digital blueprint’s “informational” content. Such arguments should fail, and fail badly, in most situations. Indeed they will have to, lest free speech become a wide Lochner-esque freedom to manufacture. Instead, I will argue that the “informational” appearance of a digital blueprint is constitutionally irrelevant, and that the First Amendment should not even come into play absent some extrinsic reason to think that the digital blueprint is being used for an expressive purpose. The presence of a digital blueprint in a fact pattern, in other words, should not in itself affect the First Amendment analysis either positively or negatively. I nonetheless express some skepticism, drawing on turn-of-the-century case law on software and recent case law on medical data, that the Supreme Court will maintain this attitude of equanimity with perfect consistency

A MODEL OF FIRST AMENDMENT DECISION-MAKING AT A DIVIDED COURT

On First Amendment issues, today\u27s Supreme Court is arguably the most protective in the institution\u27s history. But the apparent libertarian consensus masks a surprisingly deep disagreement about methodology. The Court\u27s Republican Justices prefer an austere, formal approach in which logical conclusions are pursued to the furthest reach. The Court\u27s Democratic Justices, on the other hand, would follow a more complex, contextual approach in which rules and standards are often custom-tailored to narrow factual domains. This Article models that divide. I demonstrate that the Court\u27s First Amendment case law over the past three decades has conformed to a small set of unspoken rules that I call the four tenets. These four tenets have defined First Amendment doctrine for nearly thirty years and are today so deeply ingrained that we barely notice them. Yet they do not represent a consensus position. Instead, the Court\u27s four Democratic Justices stand prepared to break with the four tenets. If the four Democratic Justices ever become five-or if a Republican supplies a fifth vote-it will mean the end of an era in First Amendment jurisprudence and the beginning of a new one

The Doctrinal Toll of Information as Speech

Courts over the past two decades have reached a near consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake other spheres of non-expressive economic activity in the Internet’s image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a future-shocked Lochner for a highly informatized and thoroughly deregulated economy. This Article argues that the theory of these lawsuits poses little genuine risk to the regulatory state. Instead, the threat is to the clarity and strength of core First Amendment principles. In theory, courts will test regulations of technologies such as digital currencies under the same strict standards that define mainstream First Amendment doctrine. But pragmatic concerns about the government’s ability to regulate economic affairs will put pressure on the same courts to dilute those standards in practice. Over time, these diluted strains will find their way back to the mainstream of First Amendment litigation. The Article concludes with recommendations to mitigate the damage

Regulating Habit-Forming Technology

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a highly addictive slot-machine- like mechanic that is common in online video games. The Federal Trade Commission has also announced an investigation into the practice. As public concern mounts, it is surprisingly easy to envision consumer regulation extending beyond video games to other types of apps. Just as tobacco regulations might prohibit brightly colored packaging and fruity flavors, a social media regulation might limit the use of red notification badges or “streaks” that reward users for daily use. It is unclear how much of this regulation could survive First Amendment scrutiny; software, unlike other consumer products, is widely understood as a form of protected “expression.” But it is also unclear whether well-drawn laws to combat compulsive technology use would seriously threaten First Amendment values. At a very low cost to the expressive interests of tech companies, these laws may well enhance the quality and efficacy of online speech by mitigating distraction and promoting deliberation