The Regulation of Technology in the Digital Platform Economy

The Regulation of Technology in the Digital Platform Economy

Professor Elettra Bietti

Khoury College of Computer Sciences

Fall 2023

Course description and objectives

Technology is as old as civilization. Yet in the last fifty years, the advent of the internet, the digital platform economy, the Internet of Things, and AI, have changed society at increasing speed and reach, raising a plethora of new legal, policy and ethical questions. The way people live their lives, communicate, work, learn, earn an income, travel, and engage in politics is undergoing transformation. This course grapples with this societal transformation looking at the responsibility of engineers and technologists in effecting change. It asks how technology changes society and how the institutions of societies such as the United States must change to respond to new technologies. A core focus of the course will be the regulation of digital platform business models such as those of Meta, Google, Amazon and Microsoft. Through a study of these business models and of technological developments such as generative AI, the course will facilitate an understanding of the role of technology in society. 

Themes we will explore as part of this course will include: introduction to law and regulation, introduction to the regulation of digital environments, intellectual property law, privacy and data protection, free speech and content regulation, competition and antitrust, the regulation of AI, Large Language Models and other recent developments.

Objectives

The aim of this course is to better equip students to choose career paths that combine computer science and technical skills with an interest in social justice and regulation, including but not limited to careers in law, policy, advocacy, legal compliance. Students will leave this course having learned how to read complex legal texts, how to think about and write about policy and legal problems and how to devise solutions to current problems at the intersection of law and technology.

Resources

I will, from time-to-time, assign readings from the following textbook: James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023). I encourage you to download your own copy on this site and offer an amount of money in exchange. The book is very up-to-date and will be a great resource for you if you choose to expand your interest in technology law and policy.

Here are some other resources:

• Grimmelmann's list of publicly available legal textbooks and casebooks,

• Grimmelmann's list of resources for students,

• Resources on generative AI and the law.

Course readings and schedule

The reading assignments for this class will be determined based on the speed in which the material is covered. The assignments will generally break down as follows, subject to change depending on the pace of the course and news developments. Readings are likely to shift as the semester proceeds, as we add or subtract readings and invite guest speakers. If anything changes, I will notify you. Since some lessons will take more than one day or week to cover, I recommend staying a lesson ahead in the reading.

Part I: Fundamentals

Week 1 (September 7th): Introduction – the role of technology in society

Please read the following article and come prepared to discuss how a technology you are familiar with (it could be social media or any other technology!) has changed or is changing your life, your community or society more broadly.

• Zeynep Tufekci, How social media took us from Tahrir Square to Donald Trump, MIT Technology Review (2018).

Week 2 (September 12 & 14): What is technology and why regulate it? 

This week we will discuss what “technology” is, the reasons for regulating it and how we might go about regulating various technologies. Think of examples of “regulation” and of examples of technologies that regulate.

• Langdon Winner, Do Artifacts Have Politics? (1980).

• Lawrence Lessig, The Laws of Cyberspace (1998).

Optional:

• Sasha Costanza-Chock, Design Justice, A.I., and Escape from the Matrix of Domination (2018).

Week 3 (September 19 & 21): Jurisdictional dilemmas about law in a borderless internet

This week, we will discuss the problem of borders or lack thereof on the internet, geoblocking, jurisdictional conflicts and other challenges law and governments face in regulating the internet.

• John Perry Barlow, EFF.org, A Declaration of Independence of Cyberspace (1996).

• Jack Goldsmith and Tim Wu, Digital Borders, Legal Affairs (2006).

• Familiarize yourself with Facebook’s Oversight Board (please browse their landing page: https://www.oversightboard.com)

Optional:

• Siva Vaidhyanathan, Facebook and the Folly of Self-Regulation, WIRED (May 2020).

Week 4 (September 26 & 28): Digital Platforms – opportunities & challenges

What are examples of digital platforms? What is a digital platform? A gatekeeper? An intermediary? A digital network? What distinguishes platforms from other tech actors? Does the term “platform” help in describing the digital economy and its main players?

• Read the definition of “interactive computer service”: 47 USC § 230(f)(2)

• Read the definition of “gatekeeper” (Articles 2 and 3 of the EU Digital Markets Act) and of “core platform service” (Article 2 of the Digital Markets Act)

• Read the definition of “intermediary service” (Article 3(g) of the Digital Services Act) and of “online platform” (Article 3(i) of the Digital Services Act).

• Julie E. Cohen, Law for the Platform Economy, 51 U.C. Davis L. Rev. 133 (2017) (read Part I - pp 136-153)

• Kate Klonick,  The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harvard Law Review 1598 (2018) (read pp. 1603-1609).

Optional:

• Tarleton Gillespie, The politics of ‘platforms’, 12(3) New Media & Society 347–364 (2010) (read pp. 347-355).

Part II: Legal Domains

Week 5 (October 3rd & 5th): Intellectual Property and software

This week, we will be discussing early copyright law debate in relation to digital intangibles like software or content, and if there is time, will discuss some issues relating to copyright infringement in the generative AI space.

• A very brief overview of copyright law: James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023), pp 415-417.

• A brief overview of fair use in copyright law: James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023), pp 477-481.

• John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, Wired Magazine (1994).

• Benjamin Mako Hill, Freedom for Users, Not for Software (2011).

• Christopher Callison-Burch, Understanding Generative Artificial Intelligence and Its Relationship to Copyright (May 2023) (read pp. 11-24, skim the rest).

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Optional:

• GNU General Public License (GPL)

• Creative Commons Licenses. 

Week 6 (October 10 & 12): Speech and content moderation

This week, we will be discussing issues at the intersection of content moderation and the regulation of online speech, including the First Amendment of the US Constitution.

• Overview of free speech and the First Amendment of the US Constitution: James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023) (pp. 123-128).

• Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, Harvard Law Review (2018): read pp. 1603-1613, then read Part III (an abbreviated version of Part III can be found in James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023) pp 549-554).

Optional:

• Jack Balkin, Free Speech is a Triangle, Columbia Law Review (2018).

• Danielle K. Citron, Sexual Privacy, Yale Law Journal (2019).

Week 7 (October 17 & 19): Surveillance and Privacy I

This week, we will be discussing privacy and “surveillance capitalism”: what these notions mean, what their boundaries might be, and how privacy is changing in the digital platform economy.

• Daniel Solove, A Taxonomy of Privacy, 154 U. of Penn. L. Rev. 477 (2006) (read pp. 479-491).

• Shoshana Zuboff, Big other: surveillance capitalism and the prospects of an information civilization, 30 Journal of Information Technology 75–89 (2015).

Optional:

• Evgeny Morozov, Capitalism’s New Clothes, The Baffler, February 4, 2019.

Week 8 (October 24 & 26): Surveillance and Privacy II

This week we will be focusing more specifically on two regimes aimed at regulating surveillance: the Fourth Amendment of the US Constitution and European data protection law.

October 24: EU Data Protection Law and US developments

• Chris Jay Hoofnagle et al., The European Union General Data Protection Regulation: What It is and What It Means, 28 Information & Communications Technology Law 65 (2019) (skim).

• Overview of US privacy laws: https://www.linkedin.com/events/u-s-stateprivacylawdevelopments7094551797905661952/theater/ (watch first 7 minutes)

October 26: Fourth Amendment of the US Constitution

• Background on the Fourth Amendment: James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023) pp 175-180.

• We will also be discussing two cases, which you can read or skim ahead of class:

  • Riley v California, 573 US 377 (2014) (extracts in James Grimmelmann, Internet Law: Cases and Problems (13thedition, 2023) pp. 179-186)

  • Carpenter v United States, 585 U.S. ___, 138 S.Ct. 2206 (2018) (extracts in James Grimmelmann, Internet Law: Cases and Problems (13th edition, 2023) pp. 196-204)

Optional:

• Brennan Center Report on the Fourth Amendment (read pp. 1-11)

Week 9 (October 31st & November 2nd): Comparative and global perspectives on data governance

This week we will be discussing cross-border data governance issues, including the cross-border application of EU data protection law, and its enforcement.

[Guest Speakers]

• Ari Waldman, Industry Unbound: The Inside Story of Privacy, Data, and Corporate Power (2021), read the Introduction.

• Anupam Chander, Margot E. Kaminski & William McGeveran, Catalyzing Privacy Law, 105 Minn. L. Rev. 1733 (2021) (skim).

• Thomas Streinz, The Evolution of European Data Law, in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (OUP, 3rd edn 2021), 902-936.

Week 10 (November 7th & 9th): The Regulation of Artificial Intelligence

This week, we will be discussing artificial intelligence and its regulation.

• Ryan Calo, Artificial Intelligence Policy: A Primer and Roadmap, UC Davis Law Review (2017).

• EU Artificial Intelligence Act (skim).

Week 11 (November 14 & 16): Antitrust and digital market regulation

This week we will be discussing recent antitrust and market regulation efforts in the digital economy, including the powers of antitrust and consumer protection authorities and the remedies that these agencies can impose.

• House Committee on the Judiciary, Investigation of Competition in the Digital Marketplace: Majority Staff Report and Recommendations (October 2020).

• Assistant Attorney General Jonathan Kanter Delivers Remarks on Lawsuit Against Google for Monopolizing Digital Advertising Technologies (January 2023)

• US v Google Antitrust Complaint (January 2023), read pp. 1-16.

Optional:

• John M. Newman, Antitrust in Digital Markets, 72 Vanderbilt L. Rev. 1497 (2019).

Week 12 (November 21): The role of law in the digital platform economy – recap and debate

There will be no readings for this class. We will use the hour to discuss the course, what you have learned. I will also describe the final assignment and answer any questions on that.

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Thanksgiving Break

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Part III: Challenges, Frontiers and Wrap-Up

Week 13 (November 28 & December 30): Power, Inequality and AI in society

• Safiya Umoja Noble, Algorithms of Oppression: How Search Engines Reinforce Racism (2018), Introduction.

• Jacob Metcalf, Emanuel Moss, danah boyd, Owning Ethics: Corporate Logics, Silicon Valley, and the Institutionalization of Ethics, Data & Society (2019).

• Jessica Dawson, Who Controls the Code, Controls the System: Algorithmically Amplified Bullshit, Social Inequality, and the Ubiquitous Surveillance of Everyday Life, Sociological Forum (2023).

• Federal Trade Commission, Generative AI Raises Competition Concerns(2023).

Week 14 (December 5th): Last Class

Students whose projects include an oral component will have an opportunity to present their work to their peers during the last class.