Tech Refactored

S2E10 - Constitutional Law, the Internet, and Cybersecurity: A Special Meet the Faculty Episode

October 08, 2021 Nebraska Governance and Technology Center Season 2 Episode 10
Tech Refactored
S2E10 - Constitutional Law, the Internet, and Cybersecurity: A Special Meet the Faculty Episode
Show Notes Transcript

This episode of the podcast is a little different from the rest. We’re featuring two special segments exploring the work of two members of our faculty, Professor Kyle Langvardt, who specializes in constitutional law, and also our own center director and usual host, Professor Gus Hurwitz. These segments were recorded for Faculty 101, a University of Nebraska–Lincoln podcast that offers a listen into the pursuits and perspectives of Husker faculty, hosted by Mary Jane Bruce.

Disclaimer: This transcript is auto-generated and has not been thoroughly reviewed for completeness or accuracy.

[00:00:07] Lysandra Marquez: This is Tech Refactored. I'm your host, Lysandra Marquez, associate producer of this show. This episode of the podcast is going to be a little bit different than the rest. This time we're featuring two special segments, exploring the work of two members of our faculty, Professor Kyle Langvardt, who specializes in constitutional law and also our own center director and usual host, professor Gus Herwitz. These segments were recorded for Faculty 101, a University of Nebraska Lincoln Podcast that offers a listen into the pursuits and perspectives of Husker faculty, hosted by Mary Jane Bruce. In his segment, Kyle talks about the complex issues related to free speech and governance of social media and why it's important for students and universities to study them. [00:01:00] 

[00:01:07] Mary Jane Bruce: We are bombarded with content on social media. Kyle Langhart, an assistant professor at the Nebraska College of Law is not a fan. 

[00:01:18] Kyle Langvardt: No, I don't smoke either. Um, I mean, I just, you know, I don't wanna do that to, to myself. 

[00:01:24] Mary Jane Bruce: In fact, Langhart put off getting a smartphone as long as possible. He just didn't want the added stress.

[00:01:33] Kyle Langvardt: But even just looking at, at regular news, I think there's kind of an addictive quality. And I, I notice in myself if I've, uh, you know, if I'm reading news as I brush my teeth, um, that- I think my mental state gets a little more, a little more scattered and, and frenetic and, and paranoid. And so I can't even imagine what, uh, in, you know, this kind of video game [00:02:00] atmosphere of social media might do.

[00:02:07] Mary Jane Bruce: But Langvardt does study social media platforms in connection with his work at the Nebraska Governance and Technology Center.

This is Faculty 101: Five things about Social Media and the First Amendment.

Kyle Langhart started out looking at the expansion of the First Amendment into areas where it doesn't belong. 

[00:02:35] Kyle Langvardt: That kind of work brought me to the, the cases involving, involving computer code and, um, the, the application of the First Amendment to like 3D printed weaponry. These arguments that I think are kind of, kind of crazy.

And then, uh, eventually, se several years ago I started thinking, Well, maybe at, at some point we'll see some kinda law that tries to constrain these really large platforms, power [00:03:00] to, uh, to govern speech. So I, I write about the First Amendment's application to these platforms, but I also write a lot about, uh, different types of policy interventions that might be possible either in the near or in the, in the long term that kind of.

[00:03:16] Mary Jane Bruce: As part of his research, he addresses the complex free speech and governance issues surrounding social media platforms. Number one, when it comes to social media, the rights of users are well 

[00:03:30] Kyle Langvardt: weak. The short answer, at least if we're talking legally, is they don't have any, um, the, the, the platforms aren't state actors.

They're, they're not the government. They're not in some kind of joint enterprise with the government. They don't perform a traditional exclusive governmental function. So the First Amendment just doesn't apply to them. And we don't really have other, um, uh, other types of anti-discrimination principles that apply to online platforms.

So if, if we're talking [00:04:00] about the, the rights of of users, you know, their rights are really the rights that the platforms grant them. 

[00:04:07] Mary Jane Bruce: Number two, social media companies do make an effort at self regulation, setting up potential conflicts with freedom of speech. 

[00:04:16] Kyle Langvardt: I mean, the platforms have to regulate themselves.

If they didn't, the platforms, the platforms would become unusable and they'd become a pretty serious threat to the. By the way, I mean in other countries where, uh, say Facebook has underinvested in its content moderation, oper operation, basically it's sensors there, There's been ethnic, ethnic violence and that kind of thing that, that's been linked pretty, pretty clear to clearly to activity on the platform.

So they have to do a lot of that kind of thing. I guess the question is, Uh, what kinds of self-regulation do we like and what kind of self-regulation don't we like? And normally when we talk about something like, uh, [00:05:00] content moderation, what we're talking about is the platform stepping in after the fact.

[00:05:05] Mary Jane Bruce: You are temporarily blocked from posting on Facebook.

[00:05:07] Kyle Langvardt: And either, uh, removing certain posts, suspending accounts. 

[00:05:13] Mary Jane Bruce: This post has been removed.

[00:05:16] Kyle Langvardt: Demoting speech in people's newsfeed. All of that is, is content based. And traditionally, at least, if we were in a, you know, a normal like First Amendment context, we'd have a very suspicious attitude toward any of that.

You know, we apply just the closest possible scrutiny to any kind of content based regulation. I think the way that a platform like Facebook is, is set up. There's basically no way around around doing.

But what I would really like to see from the platforms is changes in the way that it's set up, you know, changes that, that it's designed, One concern that I have about these social media platforms that are ad based and therefore [00:06:00] dependent on, on virality. Is that they have a tendency to make speech a lot more dangerous than it's, than it's traditionally been.

You know, the, the linkage between speech and harm is just much tighter than it's been before. And once you've. Kind of change the background physics of speech and communication and, and discourse. I think at a certain point, the freedom of speech is just no longer a viable proposition. That's basically where we live now, 

[00:06:34] Mary Jane Bruce: Number three: 

Twitter tested a feature to encourage users to, as the platform says, read it before you retweet it. If a user tries to share an article on Twitter based only on the headline, a prompt pops up asking if the user wants to read the article first. 

[00:06:54] Kyle Langvardt: That's a content neutral inter. Um, it doesn't, it doesn't require anybody to come in and make some kind [00:07:00] of judgment about what kind of speech is valuable or what's not.

Uh, but it has the effect of slowing speech down,

maybe making speech a little, a little bit more, uh, de deliberative. And, and hopefully reducing the prevalence of harm without requiring these kinds of more, more disturbing interventions. I think the thing is, uh, platforms don't wanna do too much of that because once. Speech becomes too deliberative. Uh, their, their business model is, is shot.

I mean, what, what they want to do is, is walk people through, um, a, a, an experience that leads them to purchase more products. And so deliberation is basically the enemy there.

[00:07:48] Mary Jane Bruce: Langvardt would like to see more of that type of change in the way platforms operate. 

[00:07:54] Kyle Langvardt: As social media, uh, attains more and more influence, [00:08:00] you begin to move to a point where you, you pretty much just have to rely on, on censorship to avoid harm.

That's, that's related to speech. And so I think that's a pretty disturbing development. Um, and I'd like to see public policies that tried to head off that, that dynamic. You know, I think that the freedom of speech requires, uh, kind of background social, uh, resiliency and if. You're living in a social situation that's characterized by, uh, low public trust, hot, hot emotions, a way of thinking about politics that becomes almost like sectarian, you know, Um, then you, you begin, you begin to get to a place where you can no longer really say that the best way to address bad idea.

Is, uh, by allowing good ideas to, to flow un unrestricted. So I think what we really need to do as a [00:09:00] society is, is try to recreate that, that resilience wherever, wherever we can. Um, but. That's a much harder thing to do than just allowing a platform to step in after the fact and take down speech, speech that's bad. 

[00:09:18] Mary Jane Bruce: Your account has been suspended. Number four: 

Langvardt is working on a project that will examine the role of media and governance. 

[00:09:27] Kyle Langvardt: The idea here would be to look. Um, not just social platforms, but also more traditional media outlets like newspapers, tv, radio, uh, as, as mechanisms for actually governing and, and constraining, constraining social conduct and, and, uh, talking about their interaction with, with legal mechanisms and, and so on.

We're planning to draw together scholars from, you know, all around the country, all around, around the world. Not just in law, but, but also in, in, [00:10:00] uh, journalism, uh, computer science out outside the academy, uh, to, to talk about these things.

[00:10:11] Mary Jane Bruce: And number five, it's important for students to learn about these. And for universities to study them. 

[00:10:19] Kyle Langvardt: Different classes can kind of touch on, on, uh, technology in, in all sorts of ways. But what gets left out, I think if you have, uh, just kind of scattered references to technology is, um, the, the fact that technology itself, uh, is a kind of governance institution that.

Design of, uh, networks and, and infrastructure and, and, and apps have, uh, a role in, in structuring social behavior that's really very similar to what, uh, to what law does. [00:11:00] And, um, if. You are, are not mindful of that, then I, I think, I think you wind up, um, missing, missing a lot of insights. Uh, not just, not just in practice, but that as a citizen, I think the danger is that you can begin to look at these kinds of, uh, design, design choices.

Uh, something other than choices. You can, you can start to look at, at technology as just, uh, nature or some kind of un unstoppable force rather than an actual mechanism for, uh, for, for governance. And so if we we're not aware of that, Aspect of what, what technology is, how it's constructed with what it does.

Then we can wind up just kind of sleepwalking toward a, a kind of, uh, technocracy where we've wound [00:12:00] up, uh, outsourcing all kinds of decisions to, uh, people whose names we don't even know. And by the way, I, I would say that's what we're doing with the freedom of speech right now.

[00:12:13] Mary Jane Bruce: That's Faculty 101, Five things with Kyle Langhart. Faculty 101 is produced by the University of Nebraska Lincoln.

[00:12:37] Lysandra Marquez: Welcome back listeners. We hope you're enjoying learning more about some of our faculty in this unique episode of Tech Refactored. If you like our show, the best way to show it is word of mouth, Tell a friend and keep tuning in. In our next segment, Gus Herwitz shares his perspective on current challenges to cyber security and the mission of the Nebraska [00:13:00] Governance and Technology Center.

[00:13:09] Mary Jane Bruce: It's hard to imagine a world without high-speed internet. It allows us to shop, go to school. If I, I'm gonna go ahead and get started. I want you. Not Yay. Yay. Hold meetings with colleagues who are working from home. We'll try 

[00:13:24] Kyle Langvardt: to do just like a half an hour meeting today, 

[00:13:29] Mary Jane Bruce: but Americans in rural areas lack access to broadband lagging behind their city counterparts.

It's called the Rural Digital Divide. It's just one of the issues studied by researchers at the Nebraska Governance and Technology Center housed in the College of Law at the University of Nebraska. Gus Herwitz is Director of the 

[00:13:48] Gus Herwitz: Center, the Governance and Technology Center. Uh, studies how, uh, technology and law work together to shape the institutions that really define how we as individuals live in a society.[00:14:00] 

Um, I don't think it's a surprise to anyone that technology over the last 20 or 30 years has really changed a lot about. Every aspect of our lives from the law to our norms, uh, to how government operates, how we get information, how we learn, how we produce food. Everything is shaped by technology. 

[00:14:20] Mary Jane Bruce: When it comes to issues related to current and future technology.

The center takes a new approach. 

[00:14:26] Gus Herwitz: I actually like the word transdisciplinary. Uh, going to the idea that we're moving to a new discipline we're building, so, We're building a, a new cohort of scholars and students who have a new language so that they can talk together.

[00:14:42] Mary Jane Bruce: This is faculty 1 0 1 5, Things about the Nebraska Governance and Technology Center.

[00:14:57] Kyle Langvardt: Tonight we are learning more about a cyber [00:15:00] attack, forcing the shutdown of one of the main pipelines supplying gas and 

[00:15:03] Mary Jane Bruce: diesel fuel. Oh, ransomware attack leading to the shutdown of a major fuel pipeline demonstrates the importance of cybersecurity company supplies nearly half of all fuel consumed on the east.

[00:15:17] Mary Jane Bruce: Bringing Colonial Pipeline shut down the critical energy artery for a time to prevent malicious software from spreading throughout the system. After paying the ransom, the pipeline was back in business. Cyber security problems like ransomware suffer from a lack of government regulation. Number one, Gus Herwitz says the pipeline company did the right thing by being transparent about what was happening, and by cooperating with government investigators.

[00:15:46] Gus Herwitz: But more regulation is needed. Going to this idea of governance, uh, in cyber security, one of the challenges is that we don't have the equivalent of an ntsb uh, uh, transportation, National Transportation Safety Board [00:16:00] when there is an, uh, airliner crash, when there's some serious transportation accident, there are obligations that carrier.

Disclose that to the government. The government sends in a team, the, uh, a Boeing, if it involves a Boeing plane, they'll send in their investigators. They'll all work together to figure out what the heck happened. How do we address this issue? What lessons can we learn to avoid this going forward With cybersecurity, it's the Wild West.

Generally, a problem happens. A major industry is shut down. A major company is shut down, and what's their. We don't want the public, we don't want our investors to hear about this cuz that could hurt our stock price. We don't want the government to hear about this because that could launch to an investigation about we're hand, how we're handling our data.

Whether or not that's true. There's historically been a lot of reticence and a lot of concern about this. So they keep it quiet. So we're not learning from each other. We're not learning lessons about how to prevent this, uh, going forward and, uh, in the future, this is all starting to change. We're getting much, uh, uh, more [00:17:00] sophisticated understanding about the need for cooperation.

[00:17:03] Mary Jane Bruce: Number two: The Nebraska Governance and Technology Center is there to provide research and education in areas like cyber security, from vaccine technology and driverless cars to first amendment issues in social. The center hopes to inform those. Searching for solutions to complex issues

[00:17:28] Gus Herwitz: with, uh, Facebook and social media. One of the challenges is who decides and on what grounds. Very traditionally, the law is very binary. You did something that injured someone, you need to be punished. There's some remedy there, and those remedies are typically either you have to stop, we call it an injunction, or you pay damages well.

Uh, so injunctions and damages. Things are more complicated online and with these, uh, online sorts of harms. Uh, so we're trying to figure out more complex [00:18:00] ways of addressing speech harms to prevent them beforehand or, uh, to address Mera. They've happened. So Facebook, they have this thing called the Facebook Oversight Board, which is a, a group of experts that Facebook has convened and they have contractually said.

We will bind ourselves to whatever this group of experts decide. So that's something that Facebook is trying. Um, Twitter has taken a different sort of approach. Uh, we, uh, you might have seen Twitter, uh, if you try and retweet an article nowadays without having, uh, read it, they are going to say, Would you like to read this before you retweet it?

They have a new thing now where they're, uh, using artificial intelligence to decide whether or not, uh, a reply sounds mean. Are there mean sounding words there? And then if there are, they're saying, Are you sure that you want to send this? So instead of trying to deal with problems, After the fact with more complex governance systems, their governance approach is trying to help users identify how do you [00:19:00] slow down and think about this to avoid the harm.

So we're, we're experimenting with all sorts of this stuff.

We live in such a complex world that we need more complex, nuanced governance approaches,

[00:19:20] Mary Jane Bruce: Number three: The Nebraska Governance and Technology Center conducts research and helps inform policy makers as they struggle to develop regulations. For example, the center will focus on questions around HighSpeed internet access in rural areas. 

[00:19:37] Gus Herwitz: One of the things that we're working to convene is a, uh, rural broadband research in.

Which is going to be a network of rural based academics who are all studying and expert in this field, so that when there are questions from DC when, uh, the National Science Foundation has questions about rural broadband research, we'll be a place that they can just go to, to say, Hey, we've got this question.

And they'll [00:20:00] have a group of academics who are ready to do research, who understand what the reality on the ground is, what the needs of rural communities are, who are able to engage with them, uh, in a really comprehensive. 

[00:20:11] Mary Jane Bruce: Number four: Herwitz has a variety of experience. He worked at the Los Alamos National Lab and was on a team that earned a Guinness World Record for internet to land speed, pushing the performance boundaries of high speed internet.

He interned at the Naval Research. Went to law school, earned a degree in economics. He was a trial attorney for the US Department of Justice Antitrust Division in the telecommunications and media enforcement section. As director of the Nebraska Governance and Technology Center, herwitz faces new challenges every day.

[00:20:49] Gus Herwitz: It's. Not just the fire hose of information and activity, it's multiple fire hoses. Um, it's impossible to keep up to speed on everything that's [00:21:00] going on, which makes it fascinating Every day. There are two or three really interesting things. Um, beyond that, there's so much academic and research energy, the students, uh, it's great to work with students in this area, in large part.

So much of technology, we just kind of assume and understand and we don't stop to think about and ask, Wait, what's going on with my phone when I click send? Who owns that information? Where does this meat that I'm eating come from when I turn on it off that light switch? What's actually going on? And.

Complex technological systems behind all of that. There are complex legal systems behind all of that. There are complex supply chains behind all of that and showing students when you turn on a light switch, this is what happens. Um, you have these different regulatory tariffs if you're doing this at home versus, uh, in a business environment, uh, uh, depending on how the L [00:22:00] energy is generated, uh, it's gonna trigger all these technology systems, all this stuff going.

And it changes how you think about and see the world. And it doesn't take much of this for students to say, Wow, this is complicated. But also I'm, I'm understanding this and seeing these connections and it's really interesting. Um, I, everyone involved in anything in this area, it's always a new thing every day 

[00:22:25] Mary Jane Bruce: And number five:

Herwitz believes the center has the potential to change the way we deal with some of the most pressing challenges of the future. 

[00:22:33] Gus Herwitz: I want the students that we're working with, the researchers here at the university, uh uh, to be able to think about and develop these questions and answers to these questions so that 4, 5, 6 years from now we're putting people out into the Nebraska workforce who are able to be.

Really cutting edge interdisciplinary work to address these next generation technology governance problems. 

[00:22:57] Mary Jane Bruce: The Nebraska Governance and Technology Center [00:23:00] has its own podcast. Tech Refactored can be found on Apple, Stitcher, Spotify, or Google Play. We'll put a link in the show notes.

That's Faculty 101: Five things with Gus Herwitz. Faculty 101 is produced by the University of Nebraska Lincoln.

[00:23:35] Lysandra Marquez: I'm your host, Lysandra Marquez. Thank you for joining us on this episode of Tech Refactored. If you want to learn more about what we're doing at NGTC or submit an idea for a future episode, you can go to our website at ngtc.unl.edu, or you can follow us on Twitter at unl_ngtc. If you enjoy this show, [00:24:00] don't forget to leave us a rating and review wherever you listen to podcasts.

Our show is produced by myself and Elsbeth Magilton, Colin McCarthy created and recorded our theme music. This podcast is part of Menard Governance and Technology Programming series.[00:25:00]