ICLE Director of Law & Economics Programs, Gus Hurwitz joins Matthew Heiman, Chris Riley, Anna Hsia, and Thomas Hazlett at Pepperdine Law Review‘s 2019 Symposium. The Free Lunch Podcast has provided the recording of their panel where they discuss the challenges and implications of online privacy regulation. In this panel, the speakers discuss the implications of internet privacy legislation in both California and Europe on innovation, small businesses, and consumer protection. The full episode is embedded below.

In the opening seconds of what was surely one of the worst oral arguments in a high-profile case that I have ever heard, Pantelis Michalopoulos, arguing for petitioners against the FCC’s 2018 Restoring Internet Freedom Order (RIFO) expertly captured both why the side he was representing should lose and the overall absurdity of the entire net neutrality debate: “This order is a stab in the heart of the Communications Act. It would literally write ‘telecommunications’ out of the law. It would end the communications agency’s oversight over the main communications service of our time.”

Read the full piece here.

It is a truth universally acknowledged that unwanted telephone calls are among the most reviled annoyances known to man. But this does not mean that laws intended to prohibit these calls are themselves necessarily good. Indeed, in one sense we know intuitively that they are not good. These laws have proven wholly ineffective at curtailing the robocall menace — it is hard to call any law as ineffective as these “good”. And these laws can be bad in another sense: because they fail to curtail undesirable speech but may burden desirable speech, they raise potentially serious First Amendment concerns.

Read the full piece here.

ICLE Director of Law & Economics Programs Gus Hurwitz discusses the European Court of Human Rights’ ruling that GCHQ’s bulk data collection practices fail to meet human rights standards, though they can be fixed without dumping bulk collection. And I marvel that France is urging the European Court of Justice, which needs little encouragement to indulge its anti-Americanism, to impose Europe’s “right to be forgotten” censorship regime on Americans and on other users around the world. That’s a position so extreme that it was even opposed by the European Commission. The full episode is embedded below.

https://www.steptoe.com/podcasts/TheCyberlawPodcast-231.mp3

A recent exchange between Chris Walker and Philip Hamburger about Walker’s ongoing empirical work on the Chevron doctrine (the idea that judges must defer to reasonable agency interpretations of ambiguous statutes) gives me a long-sought opportunity to discuss what I view as the greatest practical problem with the Chevron doctrine: it increases both politicization and polarization of law and policy. In the interest of being provocative, I will frame the discussion below by saying that both Walker & Hamburger are wrong (though actually I believe both are quite correct in their respective critiques). In particular, I argue that Walker is wrong that Chevron decreases politicization (it actually increases it, vice his empirics); and I argue Hamburger is wrong that judicial independence is, on its own, a virtue that demands preservation. Rather, I argue, Chevron increases overall politicization across the government; and judicial independence can and should play an important role in checking legislative abdication of its role as a politically-accountable legislature in a way that would moderate that overall politicization.

Read the full piece here.

I had the pleasure last month of hosting the first of a new annual roundtable discussion series on closing the rural digital divide through the University of Nebraska’s Space, Cyber, and Telecom Law Program. The purpose of the roundtable was to convene a diverse group of stakeholders — from farmers to federal regulators; from small municipal ISPs to billion dollar app developers — for a discussion of the on-the-ground reality of closing the rural digital divide.

Read the full piece here.

Summary

Concern about both fake news and the size of Internet mega-platforms like Facebook is popular these days. In each case the concern is intuitively obvious yet the pathway by which it manifests into tangible harm ambiguous. There are clear examples of “fake news” being used for illegitimate purposes, as well as examples of platforms engaging in (or facilitating) alarming behavior – but it is challenging to draw a clean line between such problematic conduct and other non-problematic or even desirable conduct. Better understanding these delineations is a pressing task.

Fake news is largely distributed via social media platforms like Facebook. Indeed, the more malicious of such news is often designed specifically to take advantage of these platforms. It is reasonable to think that the concerns that we have about each may therefore be related – that fake news is a Facebook problem. This is the approach put forth in recent work by Sally Hubbard, who argues that fake news is an antitrust problem. Her basic thesis is that platforms with substantial market-share, such as Facebook, have pushed quality news organizations out of the market and that those news organizations would be better able to compete for consumer attention if there were more competition between platforms like Facebook.

It is a clever and provocative argument. But it is ultimately not a compelling one. Facebook isn’t what’s killing quality news – the Internet did that, and Facebook (and other social media) are merely the deformed phoenices that arose from the traditional media’s online ashes. Facebook and its ilk may be “killing news,” but it is not because these mega-platforms are harming competition – rather, the problem is that traditional media simply cannot effectively compete with social media in the winner-take-all marketplace for consumer attention. This may be a problem – it is certainly an issue that we as a society are and will continue to consider from law and policy perspectives – but it is not an antitrust problem.

I address these issues in more depth in the following three parts. I start by reviewing the evidence about what is killing the news (it’s not Facebook!). I then look at competition in the information economy and at the horizontal and vertical relationships between Facebook and the news media. I then turn the argument on its head, looking at how the problem we face – both with too little quality news and too much fake news – may be better addressed with less competition rather than more.

Throughout this discussion I will treat two recent articles as urtext: Hubbard’s piece in Forbes in which she explains “Why Fake news Is An Antitrust Problem,”2 and a follow-up interview on the topic that she did with Vox.3 I also note that throughout I will follow Hubbard’s lead and use Facebook as the poster-example of a significant social-media platform – though both she and I recognize that other tech platforms operate in this space. Indeed, the fact that Facebook, Twitter, and Google are all important platform-sources of news (fake and otherwise) demonstrates the most basic concern with the argument, that there is no lack of competition for information, true or otherwise.

Last week the International Center for Law & Economics and I filed an amicus brief in the DC Circuit in support of en banc review of the court’s decision to uphold the FCC’s 2015 Open Internet Order.

In our previous amicus brief before the panel that initially reviewed the OIO, we argued, among other things, that…

Read the full piece here.