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Monthly Archives: August 2018

LinkedIn and Non Solicitation Agreements


LinkedIn and Non Solicitation Agreements

Here is an interesting article that discusses how you can run afoul of a non-solicitation agreement when using LinkedIn.  Basically, it appears that sending out general “friend,” or “connect” requests via social media to former clients, employees, or customers is okay.  However, targeted requests may be actionable.  The article, short and well worth the read, cites two cases to illustrate what social media acts do and do not violate non-solicitation agreements.

Law.com: Accepting That LinkedIn Invitation May Be a Violation of a Nonsolicitation Agreement

Lawyers Seeking Advice from Internet Forums


Lawyers Seeking Advice from Internet Forums

The Texas Bar recently issued an opinion approving the practice of attorneys seeking advice from internet forums.  The opinion went on to stress the importance of maintaining client confidentiality.  According to the opinion

“[i]f possible, the inquiring lawyer should limit such consultation to general or abstract inquiries that do not disclose confidential information relating to the representation. If it is not reasonably possible to address the issues in question using a general or abstract inquiry, a lawyer may reveal a limited amount of unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation.”


The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham


Guy Padraic Hamilton Smith

The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham


The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms. In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.” Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness. As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system. Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well

Twitter CEO to Testify Before Congress


Twitter CEO to Testify Before Congress

House Energy and Commerce Committee Chairman Greg Walden (R-OR) announced today that Twitter CEO Jack Dorsey will testify before the committee the afternoon of Wednesday, September 5, 2018, regarding Twitter’s algorithms and content monitoring.

“Twitter is an incredibly powerful platform that can change the national conversation in the time it takes a tweet to go viral. When decisions about data and content are made using opaque processes, the American people are right to raise concerns. This committee intends to ask tough questions about how Twitter monitors and polices content, and we look forward to Mr. Dorsey being forthright and transparent regarding the complex processes behind the company’s algorithms and content judgement calls,” said Chairman Walden. 

Using Facebook for Surveillance


Using Facebook for Surveillance

While I think most are aware that law enforcement uses social media to conduct surveillance, I am not sure people know the depth of the surveillance.  The Washington Post has an article that discusses how Memphis law enforcement employed Facebook to monitor the activities of members of Black Lives Matter.

According to the Post, “[t]he revelation came out of a civil suit claiming the Memphis Police Department violated a 40-year-old consent decree by gathering intelligence on activists through social media.”  It will be interesting to see whether the court finds monitoring via Facebook the same or similar to past intelligence gathering and surveillance of civil rights activists.  According to Memphis’ chief legal officer, Bruce McMullen, the decree cannot be applied to modern police techniques.  He stated further that “[r]eading the consent decree literally, and applying it in today’s technological world, would require the police department to turn off all security cameras and body-worn cameras during a protest.”

WaPo: Memphis police used fake Facebook account to monitor Black Lives Matter, trial reveals

Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities

Sabeel Rahman

K. Sabeel Rahman

Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities


The power and influence of dominant tech platforms — Google, Facebook, and Amazon, in particular — have become a central topic of debate. In this paper, I argue that these firms are best understood as the core infrastructure of our 21st century economy and public sphere. Whether it is Google’s search, Facebook’s newsfeed, or Amazon’s retail and logistics system, these firms are increasingly integral to economic and social activity. Viewing these firms as “infrastructure” helps to better diagnose the nature of the problems posed by these Internet platforms. Doing so also, in turn, offers some novel legal and policy responses. This paper proceeds in three main parts. First, it develops this infrastructural diagnosis of the problem with Internet platforms. While much of the current debate has revolved around issues like “fake news,” and disparities of bargaining power between, for example, Amazon and publishers, the paper suggests that these clashes are actually symptomatic of a deeper problem, that these firms are effectively privately-run infrastructure. This diagnosis helps define more sharply the central legal and policy challenge posed by these firms: if the platforms themselves are effectively governors of much of our informational, economic, and political life, how then should our public policy govern these governors? The paper develops this infrastructural view of platforms by recovering and adapting an old tradition of legal thought and regulatory strategy, stemming from the “public utility tradition.” Second, the paper adapts these public utility concepts to map the precise nature of informational infrastructural power. Specifically, I identify three types of infrastructural power exercised by these Internet platforms: transmission power, gatekeeping power, and scoring power. These types of power are subtle and often hidden from view, and explain how Internet and informational platforms can often appear diffuse, decentralized, and thus unproblematic, while at the same time exercising outsized economic power. Third, the paper explores how public utility regulatory theory might be adapted to address these distinctive types of infrastructural power.

Facebook and Content Moderation


Facebook and Content Moderation

Radio Lab has an hour long podcast discussing how Facebook moderates content.  Here is the write up:

How do you define hate speech? Where’s the line between a joke and an attack? How much butt is too much butt? Facebook has answered these questions. And from these answers they’ve written a rulebook that all 2.2 billion of us are expected to follow. Today, we explore that rulebook. We dive into its details and untangle its logic. All the while wondering what does this mean for the future of free speech?