The International Privacy Regime

Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation. First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that the world\u27s citizens receive is disproportionately dictated by the choices and preferences of powerful nation-states and their respective effects on giant and small targets. Second, traditional conflicts analysis can help explain and predict the future course of privacy analysis. Privacy regulation can be understood as a species of information regulation to which companies and individuals will respond in predictable ways. The analysis here shows an international privacy system that has fractured into three distinct regulatory patterns. Mainstream privacy, or transactional privacy, has become dominated by the rule of the most restrictive state, a pattern familiar to other areas like the world\u27s regulation of competition (antitrust). Conversely, the problem of information theft has been pushed by the international system toward a kind of a race to the bottom, or to the least restrictive rule. Most akin to international piracy (the kind on boats), it is a familiar problem to international law that will nonetheless take considerable political will to reverse. And finally, while there is a potential for the international system to influence how governments handle the privacy information of their own citizens, the direct collision of interests have limited the extent to which governments police one another

Machine Speech

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection

Antitrust & Corruption: Overruling \u3ci\u3eNoerr\u3c/i\u3e

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels. Since the 1960s, however, antitrust law’s scrutiny of corrupt and deceptive political practices has been sharply limited by the Noerr-Pennington doctrine, which provides immunity to antitrust liability for conduct that can be described as political or legal advocacy. The doctrine was created through apparent First Amendment avoidance, based on the premise that the Sherman Act could not have been intended to interfere with a right to petition government. The Noerr decision, dating from 1961, was strained when it was decided and has not aged well. As an interpretation of the antitrust laws, it ignored Congressional concern with political mischief undertaken by conspiracy or monopoly. Its legitimacy has always rested on avoidance of the First Amendment, and while Noerr itself may have legitimately reflected such avoidance, the subsequent growth of a Noerr immunity has blown past any First Amendment-driven defense of its existence. For that reason, others have suggested a reformulation of the doctrine. The better answer is that, lacking constitutional or statutory foundation, Noerr should be overruled. The First Amendment guarantees freedom of speech, assembly, and “to petition the government for a redress of grievances.” It therefore protects efforts to influence political debate as well as legitimate petitioning in the legislative, judicial or administrative processes. The First Amendment does not, however create a right to bribe government officials, deceive agencies, file false statements, or abuse government process through repeated filings designed only to injure a competitor. Nonetheless, each of these activities has, in some courts at least, been granted immunity under the overgrown Noerr immunity. It is an extra-constitutional outlier ripe for reexamination. Overruling Noerr would not make political petitioning illegal. It would, instead, require defendants to rely on the First Amendment when seeking to defend what would otherwise be conduct that is illegal under the antitrust laws. Doctrinally, this is to force courts to address whether conduct in question is actually an antitrust violation, and if, so whether it is protected by the First Amendment or not, drawing on an established jurisprudence for some of the problems presented in the Noerr context

Cyberspace Sovereignty? – The Internet and the International System

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. By linking with the Internet, we don\u27t mean absolute freedom of information. I think there is a general understanding about this. If you go through customs, you have to show your passport. It\u27s the same with management of information. There is no contradiction at all between the development of telecommunications infrastructure and the exercise of state sovereignty. Will cyberspace exercise its own sovereignty? Does it do so already

Disinformation in the Marketplace of Ideas

It was just one line, nearly a throwaway; technically a subordinate clause. Yet that one clause from Oliver Wendell Holmes’s Abrams dissent breathed life into a metaphor, the “marketplace of ideas,” whose lasting power is undeniable. Nor is it difficult to understand why. Yes, it may be incomplete, inaccurate, and possibly cribbed from John Stuart Mill, but the metaphor matches something we all see. Ideas and ideological programs are out there looking for adherents or “buyers.” In Holmes’s time, progressives, socialists, and fascists courted supporters, just as similar groups do now. Specific ideas like the flat tax or the legalization of marijuana seek their own buyers and usually go nowhere but may suddenly catch on, just as in the world of real products. I leave it to others to criticize the metaphor. What I want to suggest here is that it isn’t taken seriously enough. Despite all the talk, the First Amendment offers incomplete protection for the marketplace of ideas. If we were halfway serious about the premise that the marketplace of ideas needs protection by courts, we’d be interested in all the ways that government or private parties can distort or block competition. But the First Amendment has no interest in most such distortions – especially those created by disinformation campaigns, which have rapidly become the speech control technique of choice in the early 21st century

Blind Spot: The Attention Economy and the Law

Human attention, valuable and limited in supply, is a resource. It has become commonplace, especially in the media and technology industries, to speak of an attention economy and of competition in attention markets.” There is even an attentional currency, the basic attention token, which purports to serve as a medium of exchange for user attention. Firms like Facebook and Google, which have emerged as two of the most important firms in the global economy, depend nearly exclusively on attention markets as a business model. Yet despite the well-recognized commercial importance of attention markets, antitrust and consumer protection authorities have struggled when they encounter the attention economy. Antitrust agencies, tasked with assessing the effects of mergers and controlling anticompetitive behavior, seem to lack a way to understand the market dynamics when the firms offer free products that are actually competing for attention. Meanwhile, those tasked with consumer protection have no good paradigm for dealing with attentional intrusions stemming from non-consensual, intrusive advertising or debates over the use of telephones on airlines. This essay aims to provide a legal and economic analysis to help face the challenges here described. In other work, I have described the rise and spread of the attention industry, the businesses that depend on the resale of attention, a global industry with an annual revenue of approximately $500 billion. This essay builds on that work by focusing on the economic decisions implicit in Attention Brokerage. As described here, brokerage is the resale of human attention. It is to attract attention by offering something to the public (entertainment, news, free services, and so on), and then reselling that attention to advertisers for cash. Examples of pure Attention Brokers include social media companies like Instagram and Facebook, search engines like Google or Bing, ad-supported publishers like Buzzfeed or AM News, and some television channels like CBS or NBC. The Brokers\u27 activities are critical to the operation of attention markets, for the business model creates much of the competition for attention that this essay describes

Network Neutrality, Broadband Discrimination

This paper examines the the concept of network neutrality in telecommunications policy and its relationship to Darwinian theories of innovation. It also considers the record of broadband discrimination practiced by broadband operators in the early 2000s

Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most

Now is a particularly important time to consider the relationship between antitrust and innovation. Both US and European antitrust enforcement authorities are taking a look at the state of competition on the Internet, an inquiry that puts into clear focus the need for antitrust to take seriously its relationship with innovation policy. How would the enforcement of antitrust look if the promotion of innovation were its paramount concern? I present 3 suggestions: (1) law enforcement would be primarily concerned with the exclusion of competitors. (2) A competition law centered on promoting innovation would take very seriously its oversight of innovation catalysts. Oversight of standard setting, platforms, and patents would be of paramount importance. (3) The timing of intervention would become a more crucial issue than it is today – as a matter of prosecutorial discretion considered independent of illegality