5G is coming to a compatiable device near you. On October 1, Verizon launched the first 5G network providing 5G home service in Houston, Indianapolis, Los Angeles and Sacramento. AT&T and other carriers will start to launch 5G networks within a year. But what exactly is 5G? For background, see one or more of the below backgrounders.

From the blurb for P. W. Singer and Emerson Brooking, LikeWar: The Weaponization of Social Media (Eamon Dolan/Houghton Mifflin Harcourt, Oct. 2, 2018):

P. W. Singer and Emerson Brooking tackle the mind-bending questions that arise when war goes online and the online world goes to war. They explore how ISIS copies the Instagram tactics of Taylor Swift, a former World of Warcraft addict foils war crimes thousands of miles away, internet trolls shape elections, and China uses a smartphone app to police the thoughts of 1.4 billion citizens. What can be kept secret in a world of networks? Does social media expose the truth or bury it? And what role do ordinary people now play in international conflicts?

Delving into the web’s darkest corners, we meet the unexpected warriors of social media, such as the rapper turned jihadist PR czar and the Russian hipsters who wage unceasing infowars against the West. Finally, looking to the crucial years ahead, LikeWar outlines a radical new paradigm for understanding and defending against the unprecedented threats of our networked world.

Disinformation, ‘Fake News’ and Influence Campaigns on Twitter analyzed more than 10 million tweets from 700,000 Twitter accounts that linked to more than 600 fake and conspiracy news outlets. Crucially, the study compares fake and conspiracy news both before and after the election, allowing us to measure how the fake news ecosystem has evolved since November 2016. The study, commissioned by the Knight Foundation, found that Twitter is still rife with “fake news” a month out from the 2018 midterms, with more than 80 percent of the accounts that regularly spread misinformation in 2016 still active. The study found that those accounts together still publish upward of a million tweets a day.

Social Media Adoption by Members of Congress: Trends and Congressional Considerations (R45337, Oct. 9, 2018) examines Member adoption of social media broadly. Because congressional adoption of long-standing social media platforms Facebook, Twitter, and YouTube is nearly ubiquitous, this report focuses on the adoption of other, newer social media platforms. These include Instagram, Flickr, and Google+, which have each been adopted by at least 2.5% of Representatives and Senators. Additionally, Members of Congress have adopted Snapchat, Medium, LinkedIn, Pinterest, Periscope, and Tumblr at lower levels. This report evaluates the adoption rates of various social media platforms and what the adoption of multiple platforms might mean for an office’s social media strategy. Data on congressional adoption of social media were collected by an academic institution in collaboration with the Congressional Research Service during the 2016-2017 academic year.

In Evolution of law students, law blogs and social media, Kevin O’Keefe, founder of LexBlog which has just launched a network of blogs numbering some 19,000 law bloggers, suggests that law students could be getting help soon in establishing a social media presence. He writes

It’s going to take boots on the ground in the form of knowledgeable and experienced law students at the law schools with the support from the mothership in Seattle – LexBlog.

Westlaw has had student reps, and so has LexNexis [sic]. We’re seeing newer legal tech companies such as casetext with student reps.

LexBlog student reps could be at a law school to help a fellow student spin up for a free professional blog in minutes through the expedited LexBlog system. They could show fellow students the social media to use from Twitter, Facebook, to LinkedIn and how to use these networking tools effectively.

A good idea I think. However on-site law librarians probably would make better LexBlog representatives.

From the abstract for Kyle Langvardt, A New Deal for the Online Public Sphere, 26 George Mason Law Review ___ (2019):

Social media platforms have emerged as formidable regulators of online discourse, and their influence only grows as more speech activity migrates to online spaces. The platforms have come under heavy criticism, however, after revelations about Facebook’s role in amplifying disinformation and polarization during the 2016 presidential election. Policymakers have begun to discuss an official response, but what they envision – namely, a set of rules for online political ads – addresses only a small corner of a much wider set of problems. Their hesitancy to go deeper is understandable. How would government even go about regulating a social platform, and if it did, how would it do so without intruding too far on the freedom of speech?

This Article takes an early, panoramic view of the challenge. It begins with a conceptual overview of the problem: what kinds of risks do online platforms present, and what makes these risks novel compared to traditional First Amendment concerns? The Article then outlines the eclectic and sometimes exotic policies regulators might someday apply to problems including false news, private censorship, ideological polarization, and online addiction. Finally, the Article suggests some high-level directions for First Amendment jurisprudence as it adapts to online platforms’ new and radically disruptive presence in the marketplace of ideas.

From the abstract for From Town Square to Twittersphere: The Public Forum Doctrine Goes Digital, 25 B.U. J. Sci. & Tech. L. (2019), Forthcoming, by Dawn Carla Nunziato:

This Article examines whether and to what extent government officials’ use of social media sites to interact with their constituents constitutes a public forum and what this forum analysis means for the ability of government officials to block or censor constituents on their social media sites. Such issues have recently arisen in the context of President Donald Trump’s blocking of constituents with whom he disagrees on his @realDonaldTrump/Twitter account. Similar issues have arisen in the context of Maryland Governor Larry Hogan’s and Virginia County Commissioner Phyllis Randall’s blocking of constituents on their Facebook pages, in response to being asked challenging questions. The recent Supreme Court case of Packingham v. North Carolina sheds some light on the application of the public forum doctrine to social media sites and the use and misuse of such sites by government officials. In particular, Justice Kennedy’s opinion for the Court in Packingham extends his functional, expansive conception of the public forum doctrine to non-traditional forums that function as forums for public discourse. In Part I of this Article, I examine in detail the circumstances surrounding recent incidents in which government officials have blocked constituents from following them on Twitter and from commenting on their Facebook pages. Part II undertakes an analysis of the historical development of the public forum doctrine, its recent development in the digital age, as well as the government speech doctrine and the contrast between public forums and government speech. In Part III, I apply the forum analysis developed in Part II to the recent incidents of government officials’ blocking constituents from accessing their social media sites, with an in-depth analysis of the Trump/Twitter lawsuit in particular, and conclude that such social media sites constitute public forums in which viewpoint discrimination is illegal. Part IV provides suggestions to government officials for developing policies governing social media accounts that comply with the dictates of the First Amendment, and a brief conclusion follows.

— Joe

From the blurb for The Social Media Privacy Legislation Desktop Reference (Seyfarth Shaw, 2016-17):

Social media and related issues in the workplace can be a headache for employers. Seyfarth Shaw LLP’s Social Media Practice Group is pleased to provide you with an easy-to-use guide to social media privacy legislation and what employers need to know. The Social Media Privacy Legislation Desktop Reference:

• Describes the content and purpose of the various states’ social media privacy laws.
• Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each state.
• Provides an easy-to-use chart listing the states that have enacted social media privacy laws and the features of the law in all such states.
• Offers our thoughts on the implications of this legislation in other areas, including trade secret misappropriation, bring your own device issues and concerns, social media discovery and evidence considerations, and use of social media in internal investigations.

— Joe

On Sept. 10, LexBlog announced that it has launched a legal news blogs network headed by law blogging pioneer Bob Ambrogi in an attempt to build “the world’s largest and most comprehensive legal news and information network by drawing on the contributions of legal bloggers worldwide.” Some 19,000 legal bloggers already participate in the network. Recent additions to the network include LawSites, 3 Geeks and a Law Blog and Dewey B Strategic.

The new network features both curated and real-time posts from lawyers, law professors, law librarians, law students, legal-industry executives, legal marketers, legal consultants, legal technologists and others, providing news, insights and analysis on virtually every legal and practice topic according to LexBlog. Powering the network is LexBlog’s custom-built syndication engine that allows it to aggregate blog content from any source, regardless of whether the blog is hosted by LexBlog on its own blogging platform or externally on any other blogging platform.

In her Dewey B Strategic post, Move over ALM and Law360 – LexBlog is Launching a Legal News Network, Jean O’Grady notes that the LexBlog legal news network may offer digital legal news comsumers a competitive reprieve from LexisNexis’ near monopoly of the US legal news ecosystem (Law360, ALM, Wall Street Journal, MLex, Newsdesk). She writes

Both [Thomson Westlaw and BloombergBNA] do publish news. BloombergBNA has a serious newsletter business and TR has a variety 0f newsy publications and alerts – but neither has made a dent in the Lexis dominance of what I would call “water cooler” legal news.

LexBlog will also compete with Findlaw blogs and the Law Professor Blogs Network. This should be interesting. — Joe

After 13 years of podcasting at Lawyer2Lawyer, Bob Ambrogi is focusing his attention on his new podcast show LawNext. In this Lawsites post, Bob recounts the history of Lawyer2Lawyer noting, for example, that the show changed its name from Coast2Coast to Lawyer2Lawyer “due to the little matter of a cease-and-desist letter from the eponymous paranormal radio show.” — Joe

Information Warfare: Issues for Congress (R45142, Mar. 5, 2018) “offers Congress a conceptual framework for understanding IW as a strategy, discusses past and present IW-related organizations within the U.S. government, and uses several case studies as examples of IW strategy in practice. Countries discussed include Russia, China, North Korea, and Iran. The Islamic State is also discussed.” — Joe

From Jim Baker, Donald Trump, Twitter and Presidential Power to Interpret the Law for the Executive Branch, Lawfare, Aug. 24, 2018: “So, what to make of the president’s tweet that he does not think that what Michael Cohen did was a crime? Is that a legal determination by the president that is binding on the executive branch, including the U.S. attorney’s office? Are government attorneys now precluded from prosecuting anyone else who might have been involved in this conduct, including the president himself? Is the FBI precluded from even investigating something that the president says is not a crime? Does the U.S. attorney’s office have to move to allow Cohen to withdraw his guilty plea and have the court dismiss the information? … Or will everyone in the Department of Justice simply ignore the president’s tweet?”

H/T beSpacific. — Joe

From K. Sabeel Rahman, Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities, 2 Georgetown Law and Technology Review ___ (2018):

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.

Interesting. — Joe

From James Grimmelmann, The Platform is the Message, Georgetown Law Technology Review (Forthcoming):

Facebook and YouTube have promised to take down Tide Pod Challenge videos. Easier said than done. For one thing, on the Internet, the line between advocacy and parody is undefined. Every meme, gif, and video is a bit of both. For another, these platforms are structurally at war with themselves. The same characteristics that make outrageous and offensive content unacceptable are what make it go viral in the first place.

The arc of the Tide Pod Challenge from The Onion to Not The Onion is a microcosm of our modern mediascape. It illustrates how ideas spread and mutate, how they take over platforms and jump between them, and how they resist attempts to stamp them out. It shows why responsible content moderation is necessary, and why responsible content moderation is impossibly hard. And it opens a window on the disturbing demand-driven dynamics of the Internet today, where any desire no matter how perverse or inarticulate can be catered to by the invisible hand of an algorithmic media ecosystem that has no conscious idea what it is doing. Tide Pods are just the tip of the iceberg.

— Joe

The removed fake accounts and pages had ties to Russian and Iranian attempts to exert political influence in the US, UK, Middle East and Latin America. The accounts and pages were divided between four separate campaigns, three of which originated in Iran, of “coordinated inauthentic behaviour”, disclosed by the social network. Here’s Facebook’s press release. — Joe

“Deepfakes” is an artificial intelligence-based human image synthesis technique. It is used to combine and superimpose existing images and videos onto source images or videos, usually without permission. Such digital impersonation is on the rise. Deepfakes raise the stakes for the “fake news” phenomenon in dramatic fashion (quite literally). Lawfare offers examples:

  • Fake videos could feature public officials taking bribes, uttering racial epithets, or engaging in adultery.
  • Politicians and other government officials could appear in locations where they were not, saying or doing horrific things that they did not.
  • Fake videos could place them in meetings with spies or criminals, launching public outrage, criminal investigations, or both.
  • Soldiers could be shown murdering innocent civilians in a war zone, precipitating waves of violence and even strategic harms to a war effort.
  • A deep fake might falsely depict a white police officer shooting an unarmed black man while shouting racial epithets.
  • A fake audio clip might “reveal” criminal behavior by a candidate on the eve of an election.
  • A fake video might portray an Israeli official doing or saying something so inflammatory as to cause riots in neighboring countries, potentially disrupting diplomatic ties or even motivating a wave of violence.
  • False audio might convincingly depict U.S. officials privately “admitting” a plan to commit this or that outrage overseas, exquisitely timed to disrupt an important diplomatic initiative.
  • A fake video might depict emergency officials “announcing” an impending missile strike on Los Angeles or an emergent pandemic in New York, provoking panic and worse.

For more, see:

The impending war over deepfakes, Axios, July 22, 2018

Here’s why it’s so hard to spot deepfakes, CNN, Aug. 8, 2018

Deep Fakes: A Looming Crisis for National Security, Democracy and Privacy?, Lawfare, Feb. 21, 2018

— Joe