Law & Regulation Of Online Platforms (S)

Technology platforms -- the intermediaries that enable (and shape) our communications with friends, consumption of content, product purchases, game-playing, and more -- have come under increasing scrutiny in recent years. In the early years of the internet, Congress and the courts approached tech platforms with cautious deference, concerned that any government interference with innovation would thwart technological progress to the detriment of the public. Policymakers and courts largely left platforms to their own devices in setting the terms of their relationship with advertisers and consumers, which enabled the collection of vast troves of personal data that fueled the growth of today's tech giants. Section 230 of the Communications Decency Act, moreover, gave platforms almost complete immunity for the misuse of their networks by third parties. Only in the area of intellectual property -- where well-funded interest groups provided a powerful counterweight to the presumption against interference -- did a compromise emerge between rights-holders and platforms. The platforms made good use of their freedoms, building innovative networks whose popularity fueled their data collection, which enabled their extraordinary growth and -- at least arguably -- gave them the power and incentive to snuff out competitors through acquisition or exclusionary conduct. Despite warnings that the platforms were engaged in "killer acquisitions" and other exclusionary behavior, however, antitrust regulators showed little interest in blocking mergers or bringing monopolization claims against them. In short, across a wide range of substantive areas of law -- from privacy to data security to defamation to antitrust -- policymakers, regulators, and courts put a thumb on the scale for technology platforms through at least the mid-2010s. Over the past several years, however, the tide has begun to turn. A rising chorus of critics has argued that online platforms are causing a range of harms for which they should be held legally responsible. Some of these harms relate to the platform's own behavior -- such as the collection of personal data, the deployment of harmful algorithms, and the use of exclusionary practices to thwart potential competitors. Some of the harms result from third party behavior -- like election interference, revenge porn, and defamation -- that takes place on technology networks. Advocates argue for a variety of different legal reforms, including (but not limited to) robust privacy laws, repeal of section 230, increased antitrust enforcement, and regulatory oversight of algorithms. This seminar will introduce these debates by exploring the history of platform law and regulation since the mid-1990s. We will cover a range of topics, including: intermediary liability under trademark and copyright law (including the Digital Millennium Copyright Act); the history and current role of section 230; debates over (and changing federal policy with respect to) net neutrality; state and federal laws governing privacy, data protection, and consumer protection; and antitrust litigation and reform efforts. Given time constraints, we'll cover some of these topics in passing, and others in greater depth, but students should come away with an understanding of the key legal and policy debates across the different areas of law. RECOMMENDED COURSES: A previous course in Intellectual Property or Information Privacy is highly recommended. UPPER-CLASS WRITING REQUIREMENT: This class may be used to partially satisfy the requirement. GRADING NOTICE: This class does not offer the CR/NC/H option. ** A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.