Digital Content

[Commentary] The First Amendment protects our right to use social networks like Facebook and Twitter, the Supreme Court declared. The decision called social media “the modern public square” and “one of the most important places” for the exchange of views. The holding is a reminder of the enormous role such networks play in our speech, our access to information and, consequently, our democracy. But while the government cannot block people from social media, these private platforms can. Today, as social media sites are accused of spreading false news, influencing elections and allowing horrific speech, they may respond by increasing their policing of content. Clarity about their internal speech regulation is more important now than ever. The ways in which this newfound transparency is harnessed by the public could be as meaningful for online speech as any case decided in a United States court.

[Margot E. Kaminski is an assistant professor at the Ohio State University Moritz College of Law. Kate Klonick is a Ph.D. candidate at Yale Law School.]

The European Commission has hit Google with a €2.42 billion (approximately $2.73 billion) antitrust fine for abusing its dominance in search, a decision with potentially far-reaching implications for both the tech sector and already strained transatlantic relations.

The European Commission ended its seven-year competition investigation, concluding that the search group had abused its near-monopoly in online search to “give illegal advantage” to its own shopping service. Margrethe Vestager, the EU’s competition commissioner, said Google “denied other companies the chance to compete” and left consumers without “genuine choice”. “Google’s strategy for its comparison shopping service wasn’t just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results and demoting those of competitors. What Google has done is illegal under EU antitrust rules.” The company has 90 days to make changes and must “refrain from any measure that has the same or an equivalent object or effect”, the commission said.

Businesses leaders expressed surprise that the Department of Justice is appealing a case about when law enforcement should have access to data stored in other countries. The case pits the DOJ against Microsoft over an issue both sides have indicated requires a legislative fix: whether or not a domestic warrant can require a company to retrieve data stored on a foreign server.

Both chambers of Congress had taken up the issue with hearings involving the DOJ, industry and other stakeholders, and both chambers had expressed a sense of urgency to resolve the conflict. The DOJ filed paperwork for the appeal on June 23. The government is appealing lower court rulings that law enforcement cannot obtain data stored in a foreign nation with a warrant. Rather, the ruling says law enforcement needs to follow the foreign nation's policies for searching and seizing evidence. This has long been the case with physical evidence and the United States has several treaties known as Mutual Legal Assistance Treaties (MLATs) to provide a diplomatic apparatus to request evidence be retrieved and sent stateside.

Brussels plans to hit Google with a fine of more than $1.2 billion for abusing its dominance in search, a decision that is likely to inflame already strained transatlantic relations. European Union antitrust officials have formally recommended that the search giant be found in breach of competition regulations for using its near-monopoly in online search to steer customers unfairly to its own Google Shopping service. The final decision is expected to be made on June 28 by the EU college of commissioners, the collective decision-making body, apparently. The decision relates to one of three competition claims against the company being investigated by EU authorities and would be the first sanction by a leading competition regulator on the way Google operates.

Twenty years ago, on June 26, 1996, the US Supreme Court unanimously decided Reno v. American Civil Liberties Union, which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying strict scrutiny under the First Amendment, the Supreme Court concluded that unlike broadcasting – where the Federal Communications Commission’s indecency regulation has been upheld due to the unique characteristics of that medium – no content regulation with a justification of online child protection would be allowed. This means that there continues to be no content restrictions on what American internet users can send or receive.

Viewed in contemporary context, two lessons from Reno v. ACLU endure. First, as a constitutional law matter, there is a firewall for US government restrictions on any non-obscene online content. In turn, this virtually unfettered freedom has fueled the pervasiveness of the internet in our lives. Remember, Facebook and the world of online apps – which now exceed websites as the go-to sources online – did not even exist then. Mark Zuckerberg was only 13 years old when the court decision was released, and other app content pioneers such as Snapchat’s Evan Spiegel were still in elementary school.

This leads to the case’s second legacy, which is more implicit but also of great importance. Given the continuing inability to predict the speed and scale of internet development or changing consumer preferences, there seems to be a subtext in that government may find it difficult to develop broad prescriptive long-lasting approaches to internet regulation. The FCC favored this ex ante approach when crafting the Open Internet order under the Obama Administration. Under new FCC Chairman Ajit Pai, the agency seems to favor a revision that limits government oversight to the Federal Trade Commission’s traditional enforcement authority. As the FCC compiles its rulemaking record to justify this significant change in approach, it would not be surprising to see the Reno v. ACLU decision used to support a return of this light-touch regulatory framework.

President Donald Trump on June 26 said former President Barack Obama took no action against Russia for its actions in the 2016 election because he expected Hillary Clinton to win. President Trump concluded that Obama had not "choked" in taking no action against Russia. Instead, President Trump said Obama had "colluded" or "obstructed." "The reason that President Obama did NOTHING about Russia after being notified by the CIA of meddling is that he expected Clinton would win.....and did not want to 'rock the boat,' " President Trump tweeted. "He didn't 'choke,' he colluded or obstructed, and it did the Dems and Crooked Hillary no good." “The real story is that President Obama did NOTHING after being informed in August about Russian meddling. With 4 months looking at Russia ... under a magnifying glass, they have zero ‘tapes’ of T people colluding. There is no collusion & no obstruction. I should be given apology!” he added.

Twenty years ago, on June 26, 1997, the Supreme Court issued a landmark decision and unanimously overturned congressional legislation that made it unlawful to transmit "indecent" material on the Internet if that content could be viewed by minors. The justices ruled that the same censorship standards being applied to broadcast radio and television could not be applied to the Internet.

"The record demonstrates that the growth of the Internet has been and continues to be phenomenal," the high court concluded. "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it." The legal wrangling over the Communications Decency Act happened when the commercial Internet was primitive compared to today. The ACLU says it didn't even have a website when the CDA was signed into law in 1996. And the ACLU's lawyers on the case had never even used the Internet, either.

President Donald Trump gave his first interview in more than a month on June 22, and the result — airing June 23 on Fox News — included President Trump congratulating himself for his suggestion that there might be tapes of his conversations with former FBI Director James B. Comey. What's interesting here is that this isn't the official White House position. White House spokeswoman Sarah Huckabee Sanders denied June 22 that President Trump's six-week-old tweet about possible tapes was meant to threaten or influence Director Comey. But then President Trump just went out and basically said it himself.

The Department of Homeland Security is turning to data scientists to improve screening techniques at airports. On June 22, the department, working with Google, will introduce a $1.5 million contest to build computer algorithms that can automatically identify concealed items in images captured by checkpoint body scanners. The government is putting up the money, and the six-month contest will be run by Kaggle, a site that hosts more than a million data scientists that was recently acquired by Google. Although data scientists can apply any technique in building these algorithms, the contest is a way of capitalizing on the progress in a technology called deep neural networks, said the Kaggle founder and chief executive, Anthony Goldbloom. Neural networks are complex mathematical systems that can learn specific tasks by analyzing vast amounts of data.

[Commentary] Thanks to the open internet, a new generation of activists fighting for civil rights and equality has been able to make their voices heard in ways previously unimaginable. Now the Trump Administration is trying to turn back the clock and silence them by undoing the Network Neutrality rules. That is simply unacceptable. We have fought and won this fight before, and now it’s time to get organized again. Send your comment to the Federal Communications Commission today.

With the Trump administration waging a war on so many communities — from attempting to gut health-care coverage for millions of people to repeatedly trying to implement an unconstitutional Muslim ban — now, more than ever, we need the open internet to organize and fight back. I’ll work hard to protect Net Neutrality from inside the halls of Congress, but we need your voice too.