Tech Refactored

The Contemporary Media Regulation Landscape

September 02, 2022 Nebraska Governance and Technology Center Season 3 Episode 2
Tech Refactored
The Contemporary Media Regulation Landscape
Show Notes Transcript

Blake Reid joins Gus Hurwitz to discuss a range of contemporary media regulation issues. Blake is a Clinical Professor at Colorado Law where he serves as the Director of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) and as the Faculty Director of the Telecom and Platforms Initiative at the Silicon Flatirons Center. Blake and Gus explore a range of topics including social media legislation, common carriage regulation, first amendment challenges in creating a balanced media ecosystem, and much more.

Follow Blake on Twitter @blakereid
Follow Gus on Twitter @GusHurwitz
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Links
The Incoherence of Common Carriage Law by Blake E. Reid

This is Tech Refactored, a podcast in which we explore the ever-changing relationship between technology, society and the law. I'm your host, Gus Herwitz, the Menard director of the Nebraska Governance and Technology Center.

Our guest today is Blake Reid. My name is Blake Reid, I'm a clinical professor at Colorado Law where I direct the Samuelson Glasko technology law and policy clinic. Um, I'm one of the faculty directors at the Silicon flat iron center for law technology and entrepreneurship. In his teaching and research,

He focuses on technology, policy, telecommunications, law, intellectual property, and disability law, both he and the clinical students that he directs are regularly involved in work before state attorneys, general, the federal communications commission and other regulatory bodies. I love teaching because it's an amazing way to get students engaged with the enterprise of using law to solve social problems that arise in the context of technology and, and vice versa.

My discussion with blake focuses on a range of difficult media regulation issues that we're facing today. We spend some time talking about recent social media legislation that states such as Florida and Texas have considered. This leads us to a discussion of a concept called common carriage, which Blake helps us to unpack.

From there, we look at some of the legal challenges that these statutes are already facing in the courts and do a deep dive on some of the historical considerations of the idea of common carriage regulation. Our conversation then expands to consider contemporary first amendment challenges and some of the difficulties that we face in trying to create a balanced media ecosystem

which may or may not even be possible. We finish our discussion by highlighting some of the work that Blake has been doing recently with his students at Colorado.

Both you and I teach telecom law and a lot of tech related stuff. I I'm just gonna be selfish and, uh, try and steal your ideas here, Blake. Uh, how do you, uh, uh, think about teaching these classes and teaching these fields? Well, the thing I think about with telecom law, I, I think of the reaction that I had when I was a law student

and I first heard about telecom law, which is that sounds boring.  You know, uh, I- I think the first I heard about it was, uh, I went to a conference. It was on like the intersection of, uh, spectrum policy and water law. And I remember I sat in the audience and I was like: I have- what, what is going on here? I thought I was doing technology.

What- what- what is- what is going on here? And what I got to learn over the years of, uh, of overcoming that, that initial intuition is that there is this direct line between even the most technocratic archaic esoteric aspects of telecom law. What happens when you're allocating spectrum or making spectrum management decisions or deploying broadband or deploying physical infrastructure, making decisions about protocols and all of that kind of stuff,

you can draw direct lines from that to all of the really. Social problems that people experience that involve the internet or just drag the internet in. So I, you know, just for example, I started my class this last week, talking about social media laws that are getting after political discrimination, abortion access, hateful conduct.

And I hope, you know, when we get to the end of teaching Telecom that we can draw a line from decisions that we're making about spectrum management or about deploying internet architecture, or about structuring protocols down at the, kind of the bottom of the Internet's layer stack up to these, you know, broader consuming, social and cultural issues that are kind of consuming a lot of our, our political oxygen.

Yeah. And I mean, it's such a tangible visceral field once you get over the fact that it is so incredibly boring because it's not boring at all.  I mean, uh, you can turn on the news or listen to the radio. Okay. We're already invoking telecommunications and regulation and all this stuff, but just lately you will turn on the radio and

hear news and information about the new 988 suicide prevention hotline. Yep. That is telecom law. You hear about the digital divide, the bead program, a new broadband subsidy program, uh, 45 billion or 60 billion, depending on how you look at it. That's a major policy. You hear about Elon Musk and satellites-

well, lots of telecom law there you hear about, airplanes not being able to land due to some interference issues. That's telecom law there and robocall. So my- and then the social media issues, First Amendment issues, this is the opposite of boring and it always strikes me. And I, I love, uh, to hear your perspective on this.

This is an intensely practical and practice-oriented field, but it's also a deeply, deeply technical and theoretical field. Mm. I can't think of many fields that are simultaneously so every day practice focused while also being so complex and deeply theoretical. Yeah, I think that's right. I, you know, the, the technology too is always such a barrier too.

I remember it was for me and I, I was a, a computer science major coming into this, but, you know, Have experience with network engineering. I didn't have experience with, um, you know, how broadband networks function in a serious way. And so I think there's always this sort of wrestling between the deep technical expertise it takes to deploy these networks that we all rely on to do every facet of our lives, which, you know, the more you learn about them from a technical perspective or the, you know, as the saying goes, they're indistinguishable for magic.

Right. And they really are right when you get into how fiber works and how wireless transmission works. It's like the more you get into, you know, down into the physics of it, the more, just like, it's a, it's amazing that this works at all. You know, I, I hear people in my life complain about it not working, and I'm like, it's just a miracle that this stuff functions as reliably as it does.

But yeah, I think it- it's interesting because you've gotta meld as a practicing, you know, attorney in this space or as a professional, you know, maybe not an attorney in this space that understanding are a workable, like, you know, facile understanding of the technology with all of the social goals that we're trying to achieve.

All of the business goals that participants in these ecosystems are trying to achieve, and there's always this kind of battle to shape the technology in one direction, using legal skills and, and in the other direction, as the technology evolves as technologists change aspects of the technology to push back on the line, to make aspects of the law obsolete.

And so I think it's that give and take between technologists and lawyers. And we could talk about economists and we could talk about, you know, other disciplines that are involved in this. I think it's that give and take and that interchange and that interdisciplinary nature of the whole thing that makes it so interesting and practical at the same time.

So this is a loaded question perhaps, but which do you think is the more fruitful endeavor: law students to learn a bit of technology, or technologists to learn a bit of law and policy? Um, well, I'm gonna, I, in law professor form like evade the, the hypothetical a little bit, uh, you know, I, I, I actually think lawyers learning a little bit of technology and technologists learning a little bit of law can be really dangerous because I, I, and I say this with someone and as a background in both of these things, you know, the orientation of

technologists is to think of the world in a pretty deterministic way, right? To think we've got machines that work a particular way. If you learn, you know, how to, how to program computers, you test your programs by running them and making sure they run as expected and you can see the system, right? You can see exactly how it works.

And you know, a lot of the experience that I have working with technologists and some, you know, some of it is when I- when I started learning the law was sort of thinking that the law works that way too, right? And what lawyers learn of course is that the law is incredibly malleable. It's the social construct.

It depends on what the judge had for breakfast or what the political whims of the legislature are, whatever else. And I think the danger on the other side is lawyers assuming that technology can work that way as well. And that it's, you know, not. Bound by the constraints of physics, for example, um, that kinda thing.

So I actually think the most important thing is for lawyers and technologists that are engaged in the interdisciplinary work of telecommunications as an example, but technology as an enterprise more broadly, to understand a little bit about the fundamental aspects of how the other thing works, right? To understand as a technologist

yeah there's a lot of social construction going on when you're doing law and you can't extrapolate like one case to the rest of the world, right? Like it's not necessarily gonna work out exactly the way you think. Well, and likewise, as a lawyer to not sort of assume just because you want to, will something into existence, via law, that the technology is necessarily capable of doing that.

So I, I like, uh, being pithy at times; law does not work like code and code cannot be treated like law.  Uh, yeah. Or, or I, I suppose we're, uh, we're, contravening the, the famous Lessig Axiom on, on that front. Yeah. I mean, I also think there's some appeal to that, right? The, the notion that law and code have these sort of similar structures and that they're both fundamentally, you know, I'm thinking about the work of like Julie Cohen and, and others are fundamentally working on

society and fundamentally have these interactions with people and that there are some, some real similarities there to, to plum. And I, I, you know, I think that's true, right. I think that's the fun of interdisciplinarity is that you can see the parallels between the things, but yeah, I think it's, it's dangerous to do that superficially, if that makes any sense.

Yep. Absolutely. So let's, uh, change gears a bit. And what are some things that you're thinking about or working on nowadays? One thing that I see bubbling through legislatures and courts right now, um, is, uh, is, is social media laws or call it platform law as a field and sort of trying to structure the conduct and decision making and maybe the business structure of platforms I- Google and Facebook and Apple and Amazon, et cetera, Microsoft should, should be on that list as firms.

Um, and what are the laws that bear on that? And then how are the courts going to react to them both here in the US and, and worldwide as well. Um, and I think a couple of particularly interesting ones that I've been spending a lot of time thinking about are laws around de platforming and the sort of mandated carriage of, uh, of content, the mandated carriage of users

I think those are, uh, particularly interesting. Another one I've been paying attention to for. Several weeks is the JCPA, the journalism competition and preservation act. And it's kind of dual mechanisms of carriage and payment as a sort of subtext to negotiations between platforms and news publishers.

I think that's really interesting as we think about the sort of future of journalism and the future of truth, uh, lots going on these days, we're just scratching the surface. Let's uh, start social media. I, I know, uh, Florida, Texas have done some interesting stuff and some courts have done some interesting stuff back.

Can you, uh, uh, lay the groundwork, uh, for us where this goes back to for me? Well, maybe let's start with the statutes themselves. So there are state legislatures in these, you know, un- un- concievably conservative, uh, states that are passing laws that in various ways, and with various mechanics compel platforms to carry the content of certain kinds of users or certain kinds of content, um, that prevent, uh, those platforms from taking down content that prevent them from taking down users and that otherwise try to-

sort of address how platforms might manipulate the, uh, appearance of content. So let's call these carriage laws, or we could call them anti-deplatforming laws or protecting the freedom of speech, uh, against the, uh, the power of the corporation. Uh, or as Genevie Lakier calls it, uh, the non-First Amendment law of

free speech sort of in, in that tradition. And so those laws are kind of working their, their way through the, the courts. We have a big decision, um, from the 11th circuit in that choice v. Florida. Um, and then we got a preview of the Supreme court, uh, weighing in, um, in the sort of preliminary fight over net choice v. Paxton in, in Texas, and got a, got a very blistering dissent from, from justice Alito, sort of previewing how the conservative wing of the court might think about these laws, um, under the First Amendment.

And then I guess one, one last bit of foundation I, I would lay is to say, there's kind of the political backdrop of these, which we're talking about telecom roots of everything. Right? I think the roots of these laws are very sort of telecom thing I think they actually spring out of the debate over net neutrality.

And one of the arguments against net neutrality, which is, you know, a non-discrimination or a carriage obligation, uh, on internet service providers, one of the sort of talking points against net neutrality, um, when it was last really seriously being debated in, you know, kind of 2017 was that it was missing regulatory parody with respect to the application layer platforms like Google, Facebook, Apple, Amazon, et cetera.

And I think at first that was sort of a concern troll against net neutrality, right? It was sort of like, well, how can you treat the ISPs this way? Maybe the real problem is Facebook. Maybe the real problem is Twitter. And then that kind of got into the bloodstream in the Republican party, during the Trump era.

And suddenly it started to turn into real policy, right? And suddenly it started to become, Hey, not only maybe are these guys really the problem, but maybe this is a real problem. These platforms are biased against conservative speech and we need to start thinking about remedies to go after it. So I think you can actually draw kind of a through line from the, the telecom roots of it, uh, to, to where we are today.

And now we have state legislatures doing all this stuff and yeah so not, uh, entirely the direction I had thought that you were going to go, especially with the telecom roots and I'll, uh, come back to that in a moment. But the basic concern here is the social media platforms and other, uh, platforms censoring online

speech and in particular, uh, coming out of the Trump, uh, years, censoring conservative speech, they took, uh, the president of the United States off of the platform. Um, and we got platforms like Parlor created, um, that are promising not actually doing this, but promising to be, uh, censorship free and anything goes sort of platforms, which goes as far as their terms of service

and then stops immediately because of course they take lots of things down as well, but anyway, well, and exactly, and the other platforms, the Twitters and the Facebooks of the world would say, yeah, and that's exactly what we're doing too. We have our terms of service, our communities, uh, standards, policies, and I, I guess the two questions to explore the, the First Amendment

side of things, and that they'll probably bring us to, uh, discussing the JCPA as well, but also the, the direction that I thought you were going to go. And I, I think maybe you were carefully avoiding using this word or phrase common carriage. Um, the, the idea that we have these things, question mark called common carriers that need to take all comers.

They can't discriminate based upon the nature of the passenger or the content of the speech, perhaps. And that's a traditional telecom sort of idea. And that there's this idea that these statutes arguably, are trying to implement saying, Hey, platforms should be common carriers too. They shouldn't be allowed to discriminate based upon, uh, the characteristics of the users, including the viewpoints that they're expressing on these platforms.

I'll throw it back to you uh, in, in part with the question, were, were you trying to avoid the common carrier term in this context? Oh, well, I, I really wasn't trying to avoid it. And I actually think these questions kind of start from different places, but they end up in the same place. I think the answer to these questions are the same, um, which is at least when we're talking about platforms that carry speech.

And so, you know, now we're talking about Google, we're talking about Facebook, we're talking about, um, Apple and Amazon. We're talking about all these platforms that carry content that is generated, you know, in large part, by other people other than the platforms. Um, you know, and so what are their sort of rights and duties and obligations that attach to the carriage or moderation of other people's content, but we can go back in the history of telecommunications law, and actually we could go back much further to, you know, to the sort of pre telecommunications law of grain elevators and fairies and trains and inns

and so on and so forth, there's, there's a deep, common law tradition, uh, here, but I think it's worth just sort of cabining it to call it post-Civil war history of telecom law and think about the Telegraph companies, right? The telephone companies as kind of the quintessential common carriers, but also, you know, ISPs fit into that

I think, you know that's th- the sort of whole debate about net neutrality, is can we treat ISPs as common carriers? And then we also have the tradition of what we might call quasi- common carriers. So broadcast television, you know, we think about doctrines, like the fairness doctrine. We think about cable television and the must carry doctrine.

We might also think about newspapers as a sort of failed common carrier, the, the famous, uh, case of Miami Herald v. toward (indistinguishable) Florida of all of all places, uh, tries to impose a, a right to reply obligation on newspapers that fails. But so I, I have a, a paper out on, on this topic. And one of the things I, I did because this notion of what is a common carrier, you know, is getting deployed as these news statutes that apply to social media are coming out and you see the proponents sort of making this argument that, "Hey, these guys are common carriers, or we should be able to treat them as common carriers."

And that means, you know, A. That they're obliged to carry all of the speech. It means that they cannot discriminate on various spaces and that it's consistent with the first amendment to do that. And so what I tried to do is kind of unpack what is really going on in the history of common carriage law.

And the, the short punchline that I reached is it's kind of conflating three questions. One is what is a common carrier? Two, what is common carriage law? What are the rules of carriage? Is there some, you know, consistent notion of that? And three, when we apply common carriage rules to common carriers, what outcome comes out under the First Amendment?

And my conclusion is that we actually don't have a coherent understanding of any of those three things, that actually what we end up getting in every case is we've got really inconsistent criteria for defining common carriers that often, you know, are they natural monopolies or do they enjoy sort of an anti-competitive advantage over their competitors?

Or do they hold themselves out as being common carriers? You know, there various other criteria that folks have identified that just don't hold true for all common carriers. Right? So we've treated plenty of non monopoly carriers. Common carriers, for example, um, you know, we also, uh, have encountered folks who would like to hold themselves out as not being common carriers, who we want to demand that they be common carriers,

right? So pretty unsatisfying, um, you know, in terms of being able to identify common carriers, we also have a different range of rules, right? Of carriage rules. So there are some that are like, You literally cannot discriminate against anyone or any kind of content for, for any reason at all. We kind of find that, and then we find lots of little exceptions, right?

So some of the Telegraph laws, for example, allowed exceptions for the news, right? So if you had urgent news to get across the Telegraph, you could do so, uh, you could sort of jump to the front of the line. Um, we have various debates about whether you're obliged to carry illegal content, for example, and what you need to know about it and things get really

weird when we start to get into the quasi- carriage laws, like the fairness doctrine. I'm sure you know, Gus, as a, as a telecom law expert, the fairness doctrine is the, is the wildest doctrine that I think the United States government has ever come up with. It's the sort of elaborate idea for how to structure broadcast TV as this national civil discourse.

Right. And you sort of look at it and it's  like yeah, it kind of involves carriage, but it bears almost no resemblance to, you know, the laws that we've applied to the telephone companies or the Telegraph companies. So I think why anyone cares about all of this at the end of the day is you wanna say, are these laws that we're trying to apply?

Are they consistent with the First Amendment? And what I think we end up seeing the courts do in every case is they say, well, what's the deal with this law as applied in this context, in this historical era? And we get lots of different answers to that question. Sometimes it sticks, you know, and sometimes it doesn't, and sometimes it sticks for very different reasons.

And I think we're in a really new era now. So when we think about social media companies, I kind of think asking the question, are they common carriers is kind of a meaningless question. Mm-hmm  asking, are these laws, common carriage laws, kind of a meaningless question? The real trick question we're trying to ask is what does the First Amendment have to say about this moment?

Yeah, I mean, we could ask what do telephones, hotels, grain silos, uh, have in common? The answer is nothing other than that, they're common carriers and really they carry things. Yeah. Yeah. They're they're it's uh, but by definition you could almost say it's a category error to say, what is a common carrier or, or is this one?

Um, and I want to sus out two dimensions, um, of your discussion and to, to highlight and bring us back to, uh, that fairness doctrine point, uh, that you made, uh, a lot of what we're thinking about with this common carriage idea and all of these historical regulations we can think of as being about purely competition or economic concerns or industrial regulation or organization sort of stuff.

Sure. But when we turn to the speech and media context, we tend to be talking just about politics or bare knuckle politics, um, frankly and if you look at the history of the, the fairness doctrine and media regulation in the pre-internet era, it was used and abused by JFK and Richard Nixon by, uh, both political parties to try and browbeat the television networks for their preferred political ends.

And then we really saw an explosion of fairness, doctrine related stuff after the fairness doctrine was not abolished, but the FCC stopped enforcing in the 1980s because what did we see the explosion of AM talk radio and in particular conservative talk radio. So we saw 20 or 30 years of folks, largely on the left calling for the FCC to start using the fairness doctrine again, or Congress to regulate conservative voices on AM radio.

And now with social media, we're seeing primarily conservatives and conservative legislatures saying, "hey, we need to regulate, uh, social media because it's being used harmfully, uh, to conservative political views." Um, so is this all just politics? I guess is my question. And if so, What's the First Amendment point in all of this,

and how should we think about this? Yeah, so I mean, one of the interesting things to me, so I mean, I read a lot about the fairness doctrine and the kind of early days of the fairness doctrine. And I think we get too much of our understanding of the fairness doctrine from the sort of Reagan era tropes of, you know, it's politically abused.

The government nanny state governing the radio, all of that kind of stuff. But I think if you go back to the early days of the, you know, the creation of the FCC in 1934, and what followed from the fairness doctrine which evolved into the Mayflower case, um, what, you know, what came out in their, their big sort of report about how to apply the fairness doctrine was this notion of the broadcast TV-

like landscape and radio landscape was like this great American experiment, right? Like we had this magic new technology and there were a limited number of people that could use it without it collapsing on itself because interference would stop it, you know? So it's like, okay, the government has gotta play some sort of role in structuring this.

And what you see in the development of the early fairness doctrine cases, which go along with the development of licensing doctrine, right? Like who are they gonna give licenses to, to speak? There's this real earnest interest. And I think it's on both sides. I think it's broadcasters in the FCC alike in sort of saying, we have got this public trust.

We've got this valuable, you know, my, my former student, Jeff Wessling is gonna be mad at me. A valuable resource, but you know, let's go with that for a second. We've got this really valuable resource that if we use it can fundamentally change how Americans talk to each other, how they understand what's going on, how they understand what's important.

It's gonna have this like really meaningful impact. On discourse. Right. And I think what you saw in the early days of the fairness doctrine was broadcasters and the FCC pretty earnestly wrestling with like, well, how do we do this? How do we create this medium through which not everyone can speak for sure?

There's not enough time for broadcasters cover every issue to accommodate every voice, to talk about every single thing. But what do we do with that? How do we make fair decisions? How do we make sure that this doesn't get sort of captured for political ends or overt religious ends? You know, one of the early cases was about avoiding somebody who just wanted to like evangelize their religion on their channel.

Right. And, and the, you know, everybody sort of comes in and says, no, that can't be what this is about, right? This is for everyone, right? And I think you see that continue into the civil rights era as folks are trying to use broadcast for political advertising and you see the sort of discrimination that happens against, um, black candidates in the south, for example, in the WLBT case.

Um, so I think there's this root of the fairness doctrine. That's like the government and industry, like trying to do this grand experiment, and then you get the Reagan era stuff that you cite to where it all starts to fall apart and people start to realize, Hey, we can kind of weaponize this for political ends.

Right. We can slide down the cliff on this and we can make this untenable and unworkable. And that's where we got, right? And that's where it's continued until now. Broadcast is slowly just being supplanted by other technologies. But yeah, I mean there is Politics at the bottom of it, but I don't think the goal was politics.

I think the goal was trying to do something that transcended politics and we just learned a lesson about how that can fail and be overtaken by other priorities. Yeah. And you hit on, I think what is the key challenge here we learned to weaponize it. Yeah. Both sides have learned in the modern media era

how to weaponize mass media and that the latest iteration of this is really just the MIS and disinformation concerns that we're talking about today. And, yep. I'm going to just say, Blake, we're not going to solve this. Uh, in this discussion, but I think that you've articulated exactly the issue. This isn't a legal issue, uh, necessarily it's not a, a law issue.

It's interested groups have learned to weaponize our speech, culture and the legal, uh, framework that we have. And there's a baby swimming around in that there bathwater  and I, I, the question is, can we save it? Um, and I'll, I'll leave it as, uh, I don't know, but, uh, let's talk about what one aspect of saving it, perhaps, uh, in turn to, uh, the JCPA.

And can you tell us a bit about what's going on here and the poor plight of local media? Yeah. So I mean, talk about the disruption of the poor local media, the broadcasters, right? For a long time, subsisted on revenue from advertising, particularly true in the newspaper industry and, you know, uh, obviously

to a degree in broadcast, radio and television. Um, but as internet platforms, you know, I think most famously sort of Craigslist comes along and destroys the classified advertising ecosystem. Um, and then, you know, we get the more tailored, targeted, weaponized manipulated surveillance- fueled, whatever you want to call it,

um, ecosystems that Google and Facebook have to offer and suddenly they kind of own the advertising market. And so all the revenue that had previously flowed into sustaining local journalism is now going to these big internet platforms. And so the question, and this has been a question worldwide, is well, what do we do about that?

These platforms are making money hand over fist and local journalism is dying. Shouldn't we figure out a way to effectuate some kind of wealth transfer from where the money used to come from, can't we like route the money spigot, you know, back over to where it, where it used to flow a little bit? Um, and maybe we can sort of make that happen and kind of the first place that happened, uh, was on a, in Australia and has now, um, expanded to the United States.

And so the tricky thing in the United States that I think folks are wrestling with "now, we have this new law, the, the JCPA, which attempts to basically create this structure by which news publishers can ban together, getting a carve out from antitrust law, which would normally prevent them from colluding in this way, and go negotiate with Facebook and Google for basically

a cut of the revenue for access to their news articles." And we should say, uh, that this is currently proposed legislation that this isn't a law yet. Um, in my tea leaves reading I don't think this stands much chance of passing, but, uh, it, it nonetheless is, uh, framing the discussion that we'll be having

for years to come and certainly upcoming discussions in Congress. Yeah, that's right. I, I never know where to ballpark the chances of things in this Congress, right. It's like with all these things, I think your initial impulse is, is probably right here that this has some, some tough places to go. But in any case, I think this idea has some staying power, which is we ought to, as part of checking the dominance of these

platforms, be thinking about how to shift their revenue back to our flailing local journalism industry, such as it is, and, and how do we go about doing that? The tricky bit in the United States is that basically the object of the negotiation between the publishers and the platforms is news articles,

right? And we have real trouble under the First Amendment in the United States putting property barriers around the news, right? The news flows freely in this country under the First Amendment, and so we've got significant limitations in copyright law, for example, where things that you might not be able to do with a song or a movie or a novel or something like that you can do with

the news. There is much about the news that is unprotectable by copyright. There are many uses of news articles and the facts contained therein and the fruits of the reporting that emerge from journalism that you can do that you might not be able to do in other contexts and copyrights. So that's one

sort of problem is what are they gonna negotiate over? Because you know, the news kind of wants to be free in this, in this country. And so the way they try and sort of get around that is they say, well, it's not copyright,  it's computer fraud and abuse law, right? You can get access to the website. And of course, then the rejoinder there is

Google and Facebook sort of say, well fine, we'll just stop carrying this stuff. Right. We don't need news that much, we have all sorts of things that people like to search for. We can let this go. And then the response to that from the JCPA is, well, maybe we can make you carry it, right? Maybe if you decide to stop carrying it, we're gonna call that retaliation,

and we're gonna make that a cause of action. The publishers really want to have their content not stolen perhaps, but widely distributed. They just wanna get money in exchange for it. Well, and when the United States copyright office did a recent study on this, that's what the publisher said. They're like, are you kidding?

Like we can't, like, we rely on Google and Facebook to drive all the traffic to our sites. Like, you know, we're dead in the water if that doesn't happen, and so we end up in this bill as a sort of result of this that's like, we're trying not to do copyright law, but instead we do a carriage obligation and a payment obligation, right?

And then this elaborate, like negotiation scheme, uh, with baseball style arbitration and all of that, that goes over the top of it, and I think it's people are kind of sleeping on this bill because it's one of the most profound sort of like you have to carry this and you have to pay for it sort of obligations.

And I think in the cannon of common carriage obligations of like that's pretty novel, and we haven't really seen much like that. There's some really novel first amendment implications to that, but moreover it leaves it at the bottom what are we going to do about funding and sustaining journalism if this doesn't work and that's a really hard and deep and you know, nasty problem that I think

you go back to the fairness doctrine, right? That's what we're trying to do with the fairness doctrine. We have a series of failed experiments in this country to sustain journalism that have occasionally worked and inevitably come to this sort of end. So it's interesting to see this law kind of take in shape.

I need to put in a quick plug. So we're, we're talking to you Blake, in this week's episode, and last week we spoke with my colleague Kyle Langhart. Oh yeah. And one of the things that we discussed was constitutionally, what can the government do to promote local media in, in a different sort of context? Uh, more the government directly supporting local media.

So these discussions, uh, uh, dovetail nicely. And I, I want to add one of the reasons I, I think this legislation doesn't stand much chance is because you have more economic, traditionally, uh, antitrust focused folks like myself who look at it and say, wait, so you're enabling a cartel, you're- this is an exception to antitrust law.

That's not good. And then you also look at, who's weighing in on this. You have groups like EFF and free press. They're saying, wait a second. No. Bad law. Um, it, it doesn't go to the fundamental problems. There are other ways of dealing with these issues, whi- which leaves the question then who supports it?

And one of the truths with a lot of legislation like this is incumbent industry supports it. So the big media companies, the big publishers, the big news companies, they're more likely to support this and it very likely would leave the smaller publishers out to dry. Because they're not going to control the outcomes of efforts that these big cartels allowed by the law to negotiate with the social media companies, the small companies, aren't going to get much say in them, and they're not going to be able to form their own groups because they don't control the content that, uh, social media companies are going to want to negotiate for nearly so much.

Well, Yeah. It's I mean, it's super funny there that no matter where you focus on this bill, there are problems. Right. And I looked at it and I said, okay, the cartels, whatever, that's fine, but what are they negotiating over? How can they possibly be negotiating over this? But you're absolutely right. And I think this gets to one of the underlying kind of core dynamics that all the stuff we're talking about is getting after,

which is the power of these platforms, right? The sort of concentration, um, the anti-competitive actions that they have taken in some places. And I think the interesting thing about what the JCPA does in sort of enabling this, you know, what you've labeled as kind of cartel behavior. It reminds me of that episode of the Simpsons, where it's like, they get an invasion of one kind of animal and then they let loose like a swarm of a

slightly bigger predator, and then they eventually end up with, I think it's like gorillas, like running all over the town, like cuz they needed to eat the snakes. It's kind of the same thing, right? It's like maybe we can create a bigger cartel. And I think that goes to an underlying failure to, you know, enforce and-

you know, to the extent necessary, modify antitrust a lot to deal with the sort of anti-competitive dynamics that are happening with the platforms. And, you know, we could talk too about the American innovation and online choice act. I mean, there's a lot of like interleaving, uh, sort of efforts to go after these problems and we can't quite get our arms around all of them.

Uh, it's a, it's a challenging moment for sure. Well, we are starting to come up on our time, but I, I do want to finish up our discussion by just asking you, is there any work going on with your students, with the clinic that you would like to highlight? I know, uh, one of the great pleasures of doing the sort of work that you do is getting to work with the students on a range of issues,

and that's always good to hear about. Yeah. Um, a couple of things that really proud of our, our work on, um, one, um, my students have been working on the implementation of the Colorado Privacy Act. Um, one of the many now seemingly uh, blooming all of the time, uh, state level privacy laws, um, but the Colorado attorney general is

uh, working on implementing that. Um, my students have been doing some really– uh, you know, in my opinion, uh, of course I would say this, but I, I, I really think so– um, fantastic work on trying to help inform the attorney general about the vast array of kind of complex privacy scholarship and literature and concepts from around the world as the ag goes about implementing, uh, Colorado's privacy law.

So that's one. Um, the other one I just mentioned really quickly, our clinic does a ton of work on, I- and I don't think this issue gets a ton of attention. Um, but the FCC has a ton of authority over the accessibility of communications and video technology. Um, so next time you're watching a video, uh, turn on the closed captions, turn on the audio description, um, and realize that all of the mechanics of the controls that are provided all of the closed captions, all the audio description that are provided are often a result of policy making and, and rule making that the FCC does on 

that front and, uh, my students have been involved for the better part of the last decade, working on those issues with, uh, organizations, representing people with disabilities before the FCC. So our work continues on that, uh, on a lot of fronts. So really proud of that, Blake, thanks as always for taking the time to chat with me.

I don't believe this was the first time we got you on the podcast. It won't be the last, but looking forward to continuing to think about, to discuss these things with you and to, uh, seeing what comes next for you and your work. Thanks Gus really appreciate you having me and look forward to doing it again soon.

Tech Refactored is part of the Menard governance and technology programming series hosted by the Nebraska governance and technology center. The NGTC is a partnership led by the College of Law in collaboration with the Colleges of Engineering, Business, and Journalism and mass communications at the University of Nebraska Lincoln. Tech Refactored is hosted and executive produced by Gus Herwitz.

James Fleege is our producer. Additional production assistance is provided by the NGTC staff. You can find supplemental information for this episode at the links provided in the show notes to stay up to date on what's happening with the Nebraska Governance and Technology Center. Visit our website@ngtc.unl.edu.

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