The BTLJ Podcast: This Week in Tech Law – October 22nd, 2020
[Allan] You’re listening to the Berkeley Technology Law Journal Podcast. Here are some headlines about what’s been happening This Week in Tech Law. I’m Allan Holder.
[Kavya] And I’m Kavya Dasari. Today we’ll be following up on our coverage of Epic Games v. Apple from one of our earlier episodes. We’ll also be covering recent developments regarding Section 230 of the Communications Decency Act, a privacy lawsuit filed against the San Francisco Police Department, and a joint statement by an international coalition of countries regarding encryption and law enforcement access.
[Allan] On our October 6th episode, we covered Epic Games v. Apple, a lawsuit filed by the videogame company alleging anticompetitive practices by the tech giant. On October 9th, federal Judge Yvonne Gonzalez Rogers of the Northern District of California denied Epic Games’ request for a preliminary injunction that would have compelled Apple to return Epic Games’ popular app Fortnite to its App Store.1 Apple originally removed Fortnite from the App Store after what the court seems to consider a deliberate breach by Epic Games of its contract with Apple.2 Judge Gonzalez Rogers wrote in her ruling that it is in the public interest to ensure that companies abide by their contracts and utilize methods other than intentional breaches to resolve disputes.3 The Judge did, however, rule partly in favor of Epic Games and enjoined Apple from banning Epic Games’ developer tool, Unreal Engine, from the App Store because of the potential damage to developers and gamers who rely on the tool.4 Epic Games and Apple are now expected to go to trial in May 2021.5
[Kavya] The Verge reports that on Thursday, October 15th, Federal Communications Commission Chairman Ajit Pai issued a statement asserting that the FCC has the legal authority to reinterpret Section 230 of the 1996 Communications Decency Act, and that he intends to move forward with the rulemaking process in order to clarify the meaning of Section 230.6 In the statement, Chairman Pai stated that “members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230.”7 The announcement was in response to an executive order signed by President Trump in May, wherein the President instructed the Department of Commerce to petition the FCC to reinterpret the law.8 The Department of Commerce submitted its petition to the FCC this past July.9
Section 230 prevents a “provider . . . of an interactive computer service” from being “treated as the publisher or speaker of any information” that has been provided “by another information content provider.”10 Courts have generally interpreted Section 230 as providing online platforms and services wide-ranging federal statutory immunity from any legal liability that may arise due to unlawful content posted by their users on their sites.11
A day before Chairman Pai’s announcement, U.S. Supreme Court Justice Clarence Thomas included a ten-page statement with a Supreme Court case list signaling his belief that courts have interpreted Section 230’s liability protections too broadly.12 Although he agreed with the Court’s decision to not hear the appeal of a legal dispute in which a provision of Section 230 was raised, Justice Thomas mentioned that, when presented with an appropriate case, the Court should consider whether the text of the statute “aligns with the current state of immunity enjoyed by Internet platforms.”13
Justice Thomas’s statement argues that courts have drifted from Section 230’s natural reading by shielding companies from liability over their own content.14 Justice Thomas also addresses the counterargument that removing broad immunity would lead to an unmanageable number of lawsuits against communications platforms.15 He argues that plaintiffs should have the opportunity to raise issues in court and points out that defendants would not automatically be “liable for online misconduct” because plaintiffs would still face the burden of proving the merits of their case.16
Since it was passed in 1996, Section 230 of the Communications Decency Act has been hotly debated.17 According to Robert Hamilton at TechDirt, critics of Section 230 argue that the law’s protections “prevent the government from providing effective legal remedies for what those critics claim are abuses by users of online platforms.”18 In response, numerous bills proposing modifications to Section 230 have been introduced in Congress.19 On the other hand, Internet companies and supporters of the law would like to keep its protections, and contend that Section 230’s original purpose was to allow for moderation of online content.20 Internet companies also argue that large platforms such as Facebook, Google, Twitter, and Yelp would not be able to exist as we know them without the legal protections provided by Section 230.21
In response to Justice Thomas’s statement, Professor Jeff Kosseff of Georgetown University Law Center tweeted that it “would be a huge change to 230 interpretation if SCOTUS were to adopt [Justice Thomas’s] view.”22 However, Prof. Kosseff noted that, at the moment, this is the statement of only one Justice, and it is still uncertain whether the Supreme Court would even grant certiorari for any future Section 230 cases.23 Professor Kosseff believes future Congressional action on this issue is more likely.24
[Allan] On October 7th, the city of San Francisco, California, was sued by a group of plaintiffs who allege that the city’s police force violated an anti-surveillance city ordinance during this past summer’s protests against police brutality.25 According to Bloomberg Law, the plaintiffs, represented by the ACLU Foundation of Northern California and the Electronic Frontier Foundation (EFF), accuse the San Francisco Police Department of violating their privacy by accessing a network of approximately 400 privately-owned cameras situated around the city’s shopping district.26 The plaintiffs claim the alleged violation was perpetrated in order to keep track of protesters who took to the streets to protest police brutality against Black and brown Americans following the killing of George Floyd by police in Minneapolis, Minnesota.27
The suit alleges that the police accessed footage from these cameras in real time, violating the city’s Stop Secret Surveillance ordinance of 2019.28 The ordinance, according to the San Francisco Chronicle, “bans city agencies from using, borrowing or acquiring surveillance technology without prior approval from supervisors in all but emergency circumstances.”29 The ordinance defines such “exigent circumstances” as “an emergency involving imminent danger of death or serious physical injury to any person that requires the immediate use of Surveillance Technology or the information it provides.”30 Bloomberg Law reports that the private, unregulated camera network used by the police department “offers high-definition images that allow for remote zoom and focus capabilities and for capturing facial-recognition-ready pictures.”31
The plaintiffs argue that if the police force wanted to access the real-time images and simultaneously comply with the city ordinance, it needed to request prior authorization from the San Francisco Board of Supervisors.32 The San Francisco city attorney’s office, when reached for comment by press, provided two letters from Police Chief Bill Scott to the Board of Supervisors, wherein he argues that the alleged looting and civil unrest associated with the demonstrations created emergency circumstances that allowed the police department to access the camera network without seeking prior approval.33 The plaintiffs did not ask the court for monetary relief, but rather a court order requiring the police department comply with the city ordinance.34
Activists worry that the kind of surveillance the San Francisco police department is alleged to have engaged in presents a threat to free expression. Plaintiffs’ counsel ACLU and EFF said in their filing, “SFPD’s sweeping surveillance of these protests has invaded plaintiffs’ privacy, chills them from participating in and organizing future protests, and undermines their ability to recruit activists and organize protests, a cornerstone of our democracy.”35 In his letters to the Board of Supervisors, Police Chief Bill Scott stated that the police department “did not monitor any activity, including First Amendment activities.”36 Bloomberg Law reports, however, that some of the footage has triggered criminal investigations.37
[Kavya] On October 11th, the United States, represented by the Department of Justice, joined with officials from the United Kingdom, Australia, New Zealand, Canada, India, and Japan, to sign a statement warning about the significant challenges that encryption technology poses to public safety.38 The statement calls on technology companies to collaborate with governments, and it lays out three key steps for this collaboration, which include: (1) having technology companies embed public safety into their system designs in order to facilitate investigations; (2) providing law enforcement access to content that is in “readable and usable format” when an appropriate order has been issued; and (3) consulting with governments and other stakeholders to facilitate legal access and input into system design decisions.39
There is currently an ongoing conflict between governments, which request access to unencrypted user data, and technology companies, which refuse to create an encryption backdoor for law enforcement.40 A key point of controversy involves end-to-end encryption, which ensures communication between a sender and a receiver is confidential, even to the company providing the communications service.41 Information that is locally stored on computers, cell phones, and other digital devices is also generally encrypted, so as to protect information and user’s privacy in cases where devices might have been lost or stolen.42
According to The Verge, while the governments that signed the statement recognize the value of encryption to the protection of free expression around the globe, they also argue that privacy and cybersecurity should not predominate over public safety.43 The statement argues that encryption inhibits law enforcement from acting against “the most serious illegal content and activity online,” such as activity that targets “highly vulnerable members of our societies.”44 The technology industry has repeatedly countered requests for unfettered government access by explaining that an encryption backdoor designed for law enforcement would become a target for criminals, thereby putting users at risk.45
According to ZDNet, in 2018, Australia became the first large democracy to pass an anti-encryption law.46 The legislation requires technology companies to respond to compulsory notices that either request information or require the company to build an “interception capability” that would allow the company to respond to information requests in the future.47 While similar legislative efforts that have taken place in the United States and Europe were not successful, this week’s joint statement may be reflective of the pressures Western countries face “to reach intelligence-gathering parity with China.”48
[Kavya] Thank you for listening! The BTLJ Podcast is brought to you by Podcast Editors Andy Zachrich and Haley Broughton. Today’s episode was written by Allan Holder and Kavya Dasari and produced by Meghan Sullivan. Our Executive Producer is BTLJ Senior Online Content Editor Allan Holder. And BTLJ’s Editor-in-Chief is Emma Lee.
[Allan] We are committed to bringing you interesting news at the intersection of technology and the law. If you enjoyed our podcast, please support us by subscribing and rating us on Apple Podcasts, Spotify, or wherever you listen to your podcasts.
[Kavya] If you have any questions, comments, or suggestions, write us at btljpodcast@gmail.com.
[Allan] The information presented here does not constitute legal advice and is only up-to-date as of Friday, October 16th. This podcast is intended for academic and entertainment purposes only.