Law at the Cutting Edge

Grace Tang ‘21
Staff Editor

Conor J. Hargen ‘20
Guest Contributor

Anyone on North Grounds last Friday would have seen a plethora of signs for the Digital Democracy Symposium. They also probably would've noticed traffic worse than normal. That’s because Friday, January 25 was a busy day for the Law School, even by the standard of busy days for the Law School.

Panelists address the LIST Conference on Friday. Photo courtesy Grace Tang ‘21.

Panelists address the LIST Conference on Friday. Photo courtesy Grace Tang ‘21.

The Law Innovation Security and Technology organization (LIST) was at it again, hosting the Digital Democracy Symposium in coordination with the Center for Democracy & Technology, co-sponsored by the American Constitution Society for Law and Policy, the Black Law Students Association, the Center for National Security Law, the Federalist Society, the J.B. Moore Society for International Law, the Minority Rights Coalition, and, last but not least, the Virginia Law Review. The symposium consisted of four panels, an introduction by Dean Goluboff, and a keynote address by Yale Law Professor Jack Balkin. Yes, Friday, January 25 was a busy day indeed.

The goal of this massive undertaking was to examine how technology is threatening democratic institutions and how governments across the globe can respond. LIST Co-Founder and VLR Online Development Editor Chinmayi (“Chinny”) Sharma (’19) wanted to demonstrate that “technology is not some niche subject matter for fringe academics but rather the connective tissue for all areas of the law.” Panels comprising industry leaders tackled the biggest issues of the day, from trustbusting tech giants like Facebook and Amazon to examining the racial biases in cybersecurity.

Trustbusting in the Internet Age

After Dean Goluboff kicked off the day’s events, Professor Thomas Nachbar moderated the first panel examining “Trustbusting in the Internet Age.” The goal of the discussion was to analyze antitrust law in the digital age and whether government should do more to break up big tech companies’ market power. With the success of private sector growth, functional overlaps now exist in services provided by FAANG companies. It has become impractical to place innovative technology into clear silos, making it more difficult to apply traditional antitrust regulations.

Merritt Baer, Principal Security Architect for Global Accounts at Amazon Web services; Bebette Boliek, Professor of Law at Pepperdine; Rafi Martina ’10, Senior Policy Advisor to U.S. Senator Mark Warner (D-Va.); and Chris Riley, Director of Public Policy at Mozilla, engaged in a lively discussion addressing these issues. The panel highlighted gaps in current antitrust laws such as lack of precedent, blurred lines for smaller instances of harm, and the need for antitrust to adapt to better technology ecosystems.

“I thought the Digital Democracy event was timely. ‘Big Tech’ controversies have been omnipresent in the news, and I was really glad that LIST put on an event with leading experts from the industry, government, and media to discuss these issues” said Arjun Ogale ’21. “I particularly enjoyed the ‘Trustbusting’ segment, which focused on how the FTC and antitrust regulators could both level the playing field among competitors and protect consumers at the same time.” Matthew Hoake ’21 agreed. “My favorite panel discussion was ‘Trustbusting in the Internet Age.’ It was great to hear competing arguments for whether or not to use current antitrust authority from those who thought more regulations were appropriate.”

Balkin Keynote

Vice Dean Leslie Kendrick ’06 warmly introduced keynote speaker Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is also the founder and director of Yale’s Information Society Project, which studies law and new information technologies. “Balkin is an incredible scholar,” said Dean Kendrick, “and he has written on a wide variety of issues.”

In his address, Balkin discussed the rise of social media and its effects on free speech, as well as new issues in the age of digital infrastructure. Balkin’s speech was both informative and relevant to what we as consumers see on our social media feeds every day. He stressed three key concepts, “freedom of speech is triangular, freedom of speech is not free, and social media rests on business models.”

In light of the challenges facing free speech on social media, and considering biases such as advertising and other monetary incentives, Balkin suggested using information fiduciaries to reduce conflicts of interest. Similar to using a fiduciary in a business to maintain good faith and trust, an information fiduciary could be used for social media.

“I thought Jack Balkin’s keynote provided some insightful thoughts on our world’s current concerns with cyberspace. Most importantly, I appreciated his analysis of how the current tech giants, Facebook and Google for example, sustain themselves and make profits through gaining a large share of the advertising market, which makes it harder for other forms of media to survive,” said Hoake.

Author Panel

Next up was a panel of authors recently published in the Virginia Law Review. They discussed the potential for new technologies to effect existing government functions, from fake news to DUI smartphone apps. Jacob Ruby ’19 and Michael Weisbuch ’19 moderated.

Adam Gershowitz ’01, Associate Dean and Professor at William & Mary Law School, shared his research into technological changes in the criminal justice system. He examined everything from advancements in police investigation technologies to an iPhone app created by private DUI attorneys that helps users calculate their BAC and know what to say if they’re pulled over for driving drunk.

Sarah Haan, professor at Washington & Lee School of Law, discussed the impact that social media has on political awareness and its toxic effect on fact-based reasoning. Haan’s research also examined tech companies’ responses, including Facebook’s efforts to combat fake news after the 2016 presidential election. These topics are discussed at greater length in her forthcoming Indiana Law Journal article: “Post-Truth First Amendment.”

Katelyn Ringrose, a 3L at Notre Dame Law School, discussed her recent note in the Virginia Law Review. She examined the history of data gathering in law enforcement, from mugshots to DNA forensics, and shared the alarming statistic that 50 percent of all Americans have their personal information stored in a law-enforcement database in some capacity. Ringrose also discussed modern controversies in police technologies such as the use of body-worn cameras by police officers and the murky regulations governing their use.

Jacob Rush ’20 addressed issues of election security from his VLR article. In his presentation, Rush called attention to the fact that election vulnerability is no new issue, and controversies surrounding the 2016 presidential election simply “jolted everyone from their slumber.” Rush further argued that the privatization of election systems presents fundamental risks to election credibility and safety, pointing out that allowing for-profit companies to handle government elections is “nonsense on stilts.”

Does Big Brother See Color

Jay Stanley of the ACLU moderated the third panel of the day, which addressed the potential for technology to reinforce prejudice. Brandi Collins, Senior Campaign Director at Color of Change; Natasha Duarte, Policy Analyst at the Center for Democracy and Technology; Margaret Hu, Associate Professor at Washington & Lee School of Law; Jeramie Scott of the Electronic Privacy Information Center; and Andrew Selbst, visiting fellow at Yale Law School, all spoke on issues of race and technology.

“One of my main takeaways was technology’s impact on the scope of the issues we face today.” said Joy Wang ’21. “Rather than individual interactions that result from racial bias in profiling, algorithms are applying flawed profiling to almost anyone plugged into tech. Another important point from the panelists is that the notion of technology as an instrument of objectivity is in fact a myth. Codes are written by people, who will inevitably inject some of their own biases into the program.”

Information Industrial Complex

The last panel, titled “Information Industrial Complex,” discussed the need for government–private sector cooperation to solve national security problems, including problems created by the private sector. Ellen Nakashima, National Security Reporter for the Washington Post, moderated an engaging discussion between Cliff Chen, Assistant General Counsel at the CIA; Matt Olsen, Chief Trust and Security Officer at Uber; Peter Swire, Professor of Law and Ethics at Georgia Tech; and Ben Wittes, Editor-in-Chief of Lawfare, who skyped in on the big screen.

There was some lively banter between the panelists, who knew a great deal about the subject as many had worked on the public and private sides of this issue. As private companies become increasingly global, retrieving data from other countries for national security purposes becomes more difficult, as does doing business in other countries where data-collection regulations are still unclear. Forcing private companies to cooperate in data sharing is still an open question as well, although all panelists agreed that “the relationship between the government and private sector is imperative.”

Speaking events ended with closing remarks from Greg Nojeim ’85, Senior Counsel and Director at the Center for Democracy and Technology (CDT), with a reception to bring the busy day to an end. 

Going Forward

 When asked about the desired impact of Friday’s many events, LIST President Jeremy Gordon ’20) said: “The Law School has a critical role to play as a home of extraordinary legal expertise and intellectual firepower in addressing the challenges that emerging technology poses to democratic institutions. LIST is committed to continuing those conversations and supporting future leaders in this area of the law.”