INFO 1200: Information Ethics, Law & Policy

Power (Consumption) and Waste

Data center efficiency, water for cooling data centers E-waste exported to Africa (Ghana), disposal > recycling

MGM v Grokster (2005)

Despite substantial non-infringing uses AND architectural change from Napster, Grokster held guilty of vicarious infringement grounded in part in INTENT

A&M Records v Napster (2001)

Despite substantial non-infringing uses, Napster held guilty of contributory and vicarious infringement (NOT fair use and NOT safe harbor)

Diversity

Different *perspectives* - ways of representing individual situations or problems *Interpretations* - gathering and organising perspectives, *Heuristics* - ways of generating solutions to problems, *Predictive models* - how one infers cause and effect, Greater diversity increases ability to problem solve.

Foreign Intelligence Surveillance Act (FISA) (1978)

Established rules and procedure governing collection of foreign intelligence within the U.S. Also established foreign intelligence Surveillance Court which meets in secret and reviews applications for FISA warrants. Uses probable cause that the party in question is an agent of foreign power (not for suspicion of criminal wrongdoing) Amendments (2008, renewed 2012, 2017): Strengthen and tighten FISA 'targeting' and 'minimization' procedures, including on U.S citizens outside the United States Protection of communication service providers sharing information with warrantless FISA investigations

Public Trustee Model

Established with the 1927 Radio Act and carried through future communications legislation, this model requires broadcast license holders to act in the interests of the public due to two key characteristics: *spectrum is scarce, broadcasting is pervasive*. Scarcity inhibits other opposing view points from broadcasting access which led to the FCC fairness doctrine. The pervasiveness of broadcasting leads to 1st Amend. regulation based on obscenity.

Hush-a-Phone (1955) v. Carterfone (1968)

FCC rulings, equipment liberalization, opens the market to any lawful device (ex. answering machines, faxes, and modems)

Spectrum Crunch

Fear that there would be no more room on the spectrum for future new techs to access. After over 100 years of spectrum allocation and use, concerns were raised by the communications industry about the lack of available space. This led to a number of reforms, including the digital TV switch and auctioning of 700MHz bands.

FCC

Federal Communications Commission, independent agency of the US govt, created by statute to regulate interstate communications by radio, TV, wire, satellite and the cable. The FCC works towards 6 goals in the areas of broadband, competition, the spectrum, the media, public safety and homeland security and modernizing itself.

FTC

Federal Trade Commission, independent agency of the US govt; it's principle mission is the promotion of consumer protection and the elimination and prevention of anticompetitive business practices e.g. coercive monopoly.

1996 Telecommunications Act

First piece of legislation to address internet access in the US. Fear that baby bells (Incumbent Local Exchange Carriers) would use monopoly power in the last mile to dominate equipment and long distance markets. - Unbundling/'wholesaling' requirements - ILECs allowed back into equipment and long distance market in exchange for meeting a competitive checklist. Criticism: Even though it was supposed to encourage competition, it allowed mergers to occur in several sectors of the media.

1966 FOIA

Freedom of Information Act provides that any person has the right of access to federal agency records or information. The law carries a presumption of disclosure; the burden is on the govt (not public) to substantiate why info may not be released. Upon written request, agencies of the US govt are required to disclose those records, unless they can be lawfully withheld from disclosure under one of the nine specific exemptions in the FOIA. The federal FOIA does NOT however provide access to records held by the US Congress, nor that of the federal judiciary. Nor does it provide access to records of state or local govt. agencies, or those held by private businesses or individuals.

Computer Inquiries (1980s - 1990s)

Goal: to prevent domination/monopoly of physical layer from carrying over into domination of computer-to-computer communication at higher levels of service, building more competitive and innovative network service markets. The main question was should your telecom provider be allowed to block/throttle/other preferential treatment on basis of source, traffic type, or content? Also: FCC ruling between common carriers and emergent data processing industry. Distinction lies between basic (telecom) and enhanced (Information) services. *Basic/Telecommunication* - Operates primarily at physical, raw transmission layer (e.g. incumbent or competitive local exchange carriers). Governed by common carriage (non-discrimination, no right of refusal based on content or source) and subject to unbundling requirements. *Enhanced /Information* - Operates substantially at higher value added, data manipulation layers (e.g. Westlaw, AOL, independent ISPs) not governed by common carriage.

AT&T's research records/Bell Labs

Gold plating was under rate of return regulation, but Bell would increase their production costs to get a higher rate of return, make more money. The current system encouraged them to innovate but not necessarily apply their innovations.

Universal service

Has been established through a system of internal cross-subsidies; urban to rural, business to residential, long distance to local

Broadcasting is Uniquely Pervasive

In order to receive content from broadcasters, consumers merely need to purchase a receiver in order to tune into freqs the content is being broadcasted on. As such, broadcasters are able to deliver content to anyone, anywhere. This characteristic is the focal point for various obscenity cases such as FCC v. Pacifica, 1978, where a broadcasted performance of George Carlin's "Seven Dirty Words" act led to 1st Amend. regulation which balances the content against time of broadcast.

Interconnection policy

Intercarrier compensation, access charges, international settlements system

AT&T Time Warner 2017:

Marriage of conduit (cable, wireless) and content (CNN, Warner Bros, Game of Thrones, etc.) - Merger DENIED by Department of Justice, now under review in the courts - AT&T initially challenges DoJ on selective enforcement grounds (when DoJ demands divestiture of CNN) -First vertical merger case before the courts in 40+ years.

Fair repair legislation

Massachusetts (Automotive Right to Repair), next year nationwide, From cars to IT, consumer electronics, agriculture, medical devices, etc.: (general) Right to Repair laws: New York + 15 other states stand in various stages of progress, fair and reasonable access to manuals, diagnostic tools, spare parts, software patches and updates through the life of the device; restrictions on misleading warranty claims and restrictive licensing arrangements that give away owner rights and freedoms otherwise protected in law; and 'design for repair' principles intended to enhance the repairability and long-term sustainability of consumer devices.

Infrastructure

Material and social structures foundational to human action and meaning in the world. *Embedded* in other structures, social arrangements, and technologies; *Transparent* (and largely invisible) once established, "reappearing" only at moments of upheaval or breakdown; *Reach* beyond particular spatial or temporal locations; *Learned* as a part of membership within particular professional, social, or cultural communities; *Conventions* of practice and other forms of routinized social action; Built on, shaped and constrained by its relationship to an already *installed base*; *Fixed and changed in modular increments*, through complex processes of negotiation and mutual adjustment with adjacent systems, structures, and practices.

Snyder vs Phelps 2011

Members of church picket military funerals w anti-semitic, anti-gay propaganda, sued by father of dead soldier (Snyder) SCOTUS upholds Phelps right to picket, on grounds that: a) these are expressions on matters of public opinion on public property; b) protesters are complying with 'time, place, and manner' (TPM) restrictions; there is nothing directly or personally threatening to Snyder (even if hurtful) tl;dr - Westboro Baptist Church pickets are deemed protected under 1st Amend.

Sullivan v. New York Times 1964

Minor errors in reporting (e.g. MLK arrested 7 rather than 4 times; protestors sang 'Nearer My God To Thee' instead of the national anthem). Court finds publishers can't be held liable for minor errors in reporting unless acting in reckless disregard and on basis of 'actual malice' (tough to prove). 9-0 Supreme Court ruling in favor of NYT "actual malice" standard applied to reporting on public figures. "the clearest and most forceful defense of press freedom in American history" (NYT 2014)

Zhang v Baidu (2014)

NY Residents sued Baidu (largest search engine in China) for blocking articles + other information regarding the democracy movement in China. Judge concluded that the Baidu algorithm (which removes certain search results) was in essence an editorial judgement about which political ideas to promote. Judge ruled that Baidu had a 1st Amend. right to skew search results for political reasons.

Fake News

No basis in fact, but is presented as being factually accurate. *Cases*: 1890s Yellow Journalism - use of eye-catching headlines and exaggerations to increase sales. 1920-1940s Propaganda studies and mass persuasion, - Mass persuasion (advertising and propaganda) - Hypodermic Needle Effect (mass media has a *direct, immediate, powerful* effect on audience 1950s Opinion Leaders and 2-step flow - Flow of ideas -> radio/print -> opinion leaders -> less active sections of population. *Problems (Why it's challenging to regulate)*: - Ease of creation and circulation - Amplification of news through circulation (even if debunked - "don't think of an elephant") - Confirmation bias and the 'stickiness of belief' - Weakening of trusted intermediaries Note: Confirmation bias as humans as coherence machines... (more likely to encounter things that confirm our existing view of the world, but also BELIEVE them and REMEMBER them...)

Antitrust & Freedom of Expression: 1st Amendment

No national religion, freedom of speech + press, right to assemble and petition - the Govt. may make no law Exceptions: criminal incitement, libel, obscenity, "fighting words" No hate speech exception, Provides basis for all free speech cases in the US.

(Social Media and the 1st Amend.) Bland v. Roberts 2013

Plantiffs were group of employments who brought 1st Amend. claims against Sheriff for being fired for liking the FB page of Sheriff's opponent. (Trial judge no; appeals court yes (like putting a political sign in your yard) - but plaintiffs still lose on other grounds.

AT&T T-Mobile Merger (2011)

Proposed $39 billion merger (2nd and 4th largest mobile provider) *Arguments in favor*: - efficiency, service and quality - more effective competitor to Verizon *Arguments against*: - concentration in many local markets - loss of T-Mobile as 'disruptive innovator' *Outcome* - merger withdrawn following release of FCC staff report indicating intention to oppose (w $5 billion contractual payout to T-Mobile)

5th Amendment (privacy)

Protection against self-incrimination = testifying against yourself in criminal cases.

Robert Moses

Public official for New York metropolitan area. Implemented racial + social inequality through the engineered relationships created by the landscape. Winner argues he purposefully built 204 bridges on Long Island that were too low for buses to cleat because poorer minorities were largely dependent on public transit.

Red Lion Broadcasting v. FCC 1969

Radio evangelist B.J Hargis made a derogatory comment about a book written by Fred Cook on air. Cook wanted free air time to refute Hargis, but was refused by Red Lion Broadcasting. Cook sued, he won but was still refused free air time as Hargis paid for his. The case went to SCOTUS and created the *Fair Doctrine* rule. Strongly suggested that broadcast radio stations (by logical ext. TV stations) are 1st Amend. speakers whose editorial speech is protected, upheld the equal time provisions of the Fairness Doctrine ruling. - Cited "technological scarcity" (spectrum scarcity) - Upheld the Fairness Doctrine (mandatory right of reply), ruled that Fairness Doctrine enhanced rather than infringed First Amendment rights by ensuring balanced discussion of public concerns

Filled-rate doctrine

Rates managed through 'dual jurisdiction', both federal and state

Sourcing

Raw metal extraction (e.g. aluminium, cobalt etc.) Worker safety, child labour Conflict minerals (the 'blood circuits' problem (financing civil wars in the DRC), *3TG* (DRC) - Tin, Tantalum, Tungsten and Gold, all covered under *2010 Dodd-Frank Act, Sect 1502*, mandates SEC rules guiding reasonable inquiry, due diligence, and 3rd-party verification for 3TG minerals from designated countries. Parts of the Dodd-Frank reporting requirements struck down by SCOTUS in 2014 ('arbitrary and capricious'; First Amendment); other parts suspended by SEC Commissioner Mike Piwowar in April 2017; bill now before Congress that would defund section 1502. Critics - cost; challenges of effective verification; impact on local communities.

Miami Herald v. Tornillo 1974

SCOTUS case that overturned a Florida state law requiring newspapers to allow equal space in their newspaper to political candidates in their newspapers to political candidates in the case of a political editorial or endorsement content. - Rejects mandatory right of reply statute - Acknowledged but disregarded claim of economic scarcity in newspaper industry - Enforced Speech violates First Amendment "press responsibility is not mandated by the Constitution and...cannot be legislated"

Broadcasting with Technological Scarcity

Scarcity is the economic idea of limited access or availability to goods relative to demand. Scarcity appears in spectrum due to the finite amount of usable frequencies available for broadcasting. This economic problem is the driving force behind many broadcast legislation, including the 1927 Radio Act, 1934 Communications Ac and the Telecommunications Act of 1996.

Kingsbury Commitment (1913)

Seeks to control natural monopoly as a "regulated monopoly" *AT&T agrees/concedes to:* Divesting Western Union Allowing interconnection of independents Achieving universal service Practicing non-discrimination on basis of source content (basis of common carriage) *AT&T gets to:* Retain structure Receive protection against competitive entry Be reclassified as a "regulated monopoly," under "rate of return" regulation and a "filed rate" doctrine. The upshot: AT&T constituted a natural monopoly, and therefore should operate as a regulated monopoly bound by common carrier requirements.

Common law: Warren and Brandeis, "The right to privacy" (1890)

Set common law precedent, *Context*: technological advance of photography = invasion of privacy. *Statutes*: right to be left alone, right to self-disclosure, necessity to 'retreat from intensity and complexity of modern life' *Limits*: truth is no defence for libel/slander, absence of malice is no defence.

3rd Amendment (privacy)

Soldiers cannot be housed in the home. This is significant because it establishes privacy of the home. Shows that a person's home is theirs and theirs alone and they have the right to exist freely in that space without the worry of authority.

Universal v Sony (1984)

Sony accused by Universal of 'vicarious' and 'contributory' copyright infringement for home recording of TV broadcasts. SCOTUS ruled that the making of individual copies of complete television shows for purpose of time shifting (recording show to watch later) does not constitute copyright infringement, but is fair use.

1927 Radio Act

Stablizes the airwaves, manages problems of interference. Legislation that regulated the licensing of spectrum based on comparative needs to radio stations due to the scarcity of available spectrum and interference of programs using the same frequency. Anyone who successfully won spectrum to broadcast on was subject to the "public trustee" model--a requirement that any licensee had to act in the interests of the public and not of its stakeholders. Although obsolete, this law laid the foundation for future regulation of telecommunication and television based on the same principle of scarcity.

Herfindahl-Hirschman Index (HHI)

Sum of the squares of the market shares of the 50 largest firms in a market. 1. Mergers HHI 0 - 1000 points = unconcentrated; are unlikely to warrant scrutiny. 2. Mergers HHI 1000 - 1800 = moderately concentrated; may raise concerns and warrant scrutiny. 4. Mergers HHI 1800+ = concentrated; will be presumed to enhance market power, raise antitrust concerns. Other conditioning factors: innovation and product variety, coordinated effects, prospects of new entry, efficiencies, etc.

Rate of return regulation

System for setting the prices charged by monopolies. Monopolies will be compelled to charge the same price that would prevail in a perfectly competitive market, equal to the efficient costs of production + a market-determined rate of return on capital.

Technological Revolutions

Technological changes with significant, widespread, and enduring social impact. 1. *Introduction Stage* - esoteric, intellectual curiosity limited to small group of people. 2. *Permeation Stage* - standardised, training, cost of application drops, demand and development rises. 3. *Power Stage* - readily available, integration into society, if truly revolutionary, impact is significant. *Open* - occurs in open society, accessible in/directly over time, e.g. automobile revolution. *Closed* - severely restricted by social, political and economic forces and is unlikely to reach Permeation + Power stage. e.g. nuclear weapon development. *Subrevolution* - Moves through stages but not necessarily at the same time/rate but is embedded in general revolution. e.g. cellphones, www. *Policy (and ethical) vacuums* - lack of conceptual clarity, e.g. wifi + wardriving. *Path dependency* - downstream impact may be dimly perceived, e.g. QWERTY keyboard.

1973 Fair Information Practices (HEW Report)

The central contribution of the HEW Advisory Committee. 5 Principles: *Notice/Awareness* No personal data recording systems whose existence is secret *Access/Consent* Must be able to see what information is held and how it is being used *'Downstream Consent'* Individuals must consent to the repurposing of data collected for one purpose for other purposes *Access/Participation* Individuals must be able to correct or contest inaccurate information *Enforcement/Redress* Collection/storage agencies hold a responsibility for accuracy, reliability and precautions against misuse

Information ethics, law and policy

The collection of norms, rules, values, laws, policies and institutions that shape, limit and enable emerging information technologies and the sociocultural practices around them.

Monopolies

The exclusive possession/control of the supply or trade in a commodity or service. *Cons*: price, innovation, variety of quality of goods + services, market power into other segments (monopoly leveraging - using power in one market to gain advantage in another). *Pros*: earned monopolies, efficiencies may be passed through in price, resources to innovate, short term monopolies.

FCC Fairness Doctrine

The fairness doctrine of the United States Federal Communications Commission (FCC), introduced in 1949, was a policy that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that was—in the FCC's view—honest, equitable, and balanced. The FCC eliminated the policy in 1987 and removed the rule that implemented the policy from the Federal Register in August 2011. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented. The demise of this FCC rule has been considered by some to be a contributing factor for the rising level of party polarization in the United States. The main agenda for the doctrine was to ensure that viewers were exposed to a diversity of viewpoints.

Planned Obsolescence

The intentional shortening or acceleration of product life cycles, through design/marketing, to encourage more rapid turnover and replacement, e.g. Ford (automobiles), the centennial bulb Issue over whether product life shortening is an unfair consumer practice?

The right to be Forgotten

The issue has arisen from desires of individuals to "determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past. Allows people to apply to have certain pieces of information stripped from their record in order to move on from past indiscretions.

Network Neutrality

The prevention of ISPs from blocking, throttling or providing any sort of preferential treatment to internet users based off any criteria. There are a few varieties of network neutrality which may allow for some or of the above 3 preventions. It is not usually protecting against reasonable network management (quality of service tiering) or against usage-sensitive pricing (consumer speed tiers). *History* 2004 Four Freedoms - Comocast-Bit Torrent (2008 'Comcast Order') 2010 + 2015 Open Internet Orders Grounds of FCC authority: Title I (ancillary authority) vs Title II (2015 reclassification debate). *Important Questions* - Innovation + investment - Who should regulate (and under what authority): FCC, courts, antitrust, market competition or industry self-regulation? - Transparency and accountability? - Wired vs wireless? - Content (FB, Google, Netflix, etc) vs. conduit industries (Verizon, Spectrum, etc.)

1934 Communications Act

Transfers the management of wired/wireless communication to the newly formed FCC. Title II: Common carriage (wireline) Title III: Broadcast (wireless-radio and spectrum) Title I: Ancillary authority (other arising matters broadly related)

Espionage Act 1917 (1st. Amend.)

Triggers free speech lawsuit, WWI protests; 1st Amend. protection initially weak, clear and present danger test is subsequently weakened.

Abrams v. US 1917 (1st. Amend.)

Upholds prosecution of WWI protestors under Espionage Act, citing 'Clear and present danger', dissenting view proves more important; market place of ideas.

1st Amendment (privacy)

With regards to privacy, the first amendment protects our rights to speak anonymously and to associate freely with groups. This is significant because it allows us to be able to make personal comments on something without our opinions being known to the world.

Langdon Winner

Writer of 'Do Artifacts have Politics?' Argues that artifacts contain certain political properties. 1. The invention, design, or arrangement of a specific technical device or system becomes a way of settling an issue in the life of a particular community, e.g. speed bumps. 2. Called 'inherently political' technologies, man-made systems that appear to require or to be strongly compatible with particular kinds of political relationships, e.g. Robert Moses example.

Viacom v Youtube (filed 2007, settled 2014)

YouTube protected under the safe harbor provision, despite evidence of clearly infringing material; in settlement, YouTube agrees to enhance its detection mechanisms (ContentID, etc.)

Patent

a set of exclusive rights granted by a sovereign state or intergovernmental organisation to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. An invention is a solution to a specific technological problem and is a product or a process. Patents are a form of intellectual property. *Why we need patents*: - Incentives to invent, develop, commercialise, - Making useful knowledge public - The patent bargain: limited protection in exchange for disclosure - Patent protections: the right to exclude others from making, using, selling, or importing the invention in question for the term of the patent (20 years). *Patent Application*: - Patent Description: describes the nature of the invention or process for which the patent is being submitted; discusses prior art; discloses the technique for producing the claimed invention sufficient for replication by "person having ordinary skill in the art". - Patent Claim: defines legal protection - Filing Date - Three types of Patents: utility, design and plant. *Examination (prosecution) and grant: - Patent Tests: novelty, utility, non-obvious. PHOSITA (Person HAving Ordinary Skill in the Art) - Prior art search - Grant/Issue Publication - 18 months to 3 years after filing. - Rejection and Continuation *Post Grant Review*: handles reissuing, reexamination and opposition, *Negotiation and Licensing: licensing, cross-licensing and reciprocity (patent pools, defensive patenting). *Patent Enforcement*: handles infringement and examines allegations of infringement AND validity of the patent.

The Right to Privacy

an individual's legal right, not explicitly provided in the United States Constitution, to be left alone and live life free from unwarranted publicity. This is significant because in a time where photographs and information can be easily taken of individuals without their consent. Everyone has the right to retreat from the intensity and complexity of modern life. This was an article written by Warren and Brandeis which set the precedent for common law.

Olmstead v. US (1928)

first time the supreme court grapples with 4th amendment in the context of distant communication (in this case, the telegraph). A wire out of the defendant's work was tapped without a warrant and he was convicted; he challenged and the Supreme Court upheld his conviction and the use of the warrantless wiretap because nothing was taken or broken into. Shows that the supreme court thought that phone conversations should not be protected as much as paper mail.

Conglomerate Merger

is a merger between companies in different industries. Conglomerate mergers have generally been permitted.

Vertical Merger

is a merger between companies in the same industry but at different stages of production process i.e. companies where one buys or sells something from the other. Vertical Mergers are usually ignored unless they are between two firms who are each in highly concentrated industries.

Horizontal Merger

is a merger between firms that are selling similar products in the same market, a horizontal merger decreases competition in the market. Govt. looks more carefully at horizontal mergers because they are more likely to increase concentration and reduce competition.

4th Amendment (privacy)

protects privacy against "unreasonable searches and seizures" (right to be secure) underlying rationale is the protection of individual privacy and liberty, but also a check on excessive government power, and prevention of group-level effects (example is racial profiling). In practice, the 4th amendment means the gov needs a warrant from a judge before conducting surveillance, they can't conduct "fishing expeditions" where they try to cast a wide net and get as much data as they can (instead it needs to be narrowly targeted), and the "fruit of the poisonous tree" exclusionary rule means that in a court setting, and entire chain of information is ruled out as evidence if it is shown that it was obtained through an illegal search.

1966 Freedom of Information Act

provides a right of access to records held by public bodies and regulates how public bodies manage personal information. Significant because it allows people to access government records and see what information the government has about them.

Antitrust

relating to legislation preventing or controlling trusts or other monopolies, with the intention of promoting competition. *History*: - Sherman Act 1890: limits collusion between firms - Clayton Act: plugs hole created by Sherman Act (post-SA merger wave); establishes notification procedures and defines M&A guidelines and thresholds followed by FTC and DOJ - FTC Act: establishes FTC as key antitrust agency, charged with enforcing terms of the FTC and Clayton acts; Bureau of Competition and Bureau of Consumer Protection. *Goals*: 1. Limiting anticompetitive collusion + cooperation between market competitors (cartels, 'trusts', price fixing, geographic market allocation.) 2. Limiting anti-competitive or abusive practices of individual firms with market power. (predatory pricing, refusals to deal, abuse of dominance). 3. Oversight of mergers and acquisitions that result in significant market concentration. PLUS consumer protection (FTC): minimum quality standards, false advertising, adequate disclosure, liability and compensation. *Additional Goals (esp. out of US)*: - Trade promotion and industrial development, (e.g. Korean 'chaelbol') - Crisis management and inflation - Support small firms *Elements of Antitrust*: - collaboration/collusion among competitors (Sherman Act) - Mergers in concentrated industries (Clayton Act) - Anti competitive practices by firms with market power; monopoly leveraging (Abuse of Dominance) - Unfair and deceptive trade practices; consumer protection (FTC Act)

Carpenter v. North Carolina (2017)

striking down a North Carolina statute barring convicted sexual offenders from accessing 'social media sites with interactive features where minors are known to be present'. - Law is overbroad - what constitutes as "sites where minors are present"? - Social media is increasingly central site of social life

Filter Bubble

the intellectual isolation that can occur when websites make use of algorithms to selectively assume the information a user would want to see, and then give information to the user according to this assumption. Websites make these assumptions based on the information related to the user, such as former click behavior, browsing history, search history and location. For that reason, the websites are more likely to present only information that will abide by the user's past activity. A filter bubble, therefore, can cause users to get significantly less contact with contradicting viewpoints, causing the user to become intellectually isolated.

Fair Use

"An exception under copyright law, allows people to use materials that would otherwise be covered under copyright without permission or compensation to the owner for certain purposes. Courts weigh fair use claims using 4 factors: nature of the copyrighted work (e.g. factual vs. original creative work); nature of the use (e.g. educational/parody vs. commercial); amount of the work used in relationship to the whole; and effect on the market of the original. Important part of the 'balancing act' of copyright because it makes sure copyrighted materials can still be used for certain important purposes."

Broadcom Qualcomm 2018

$142 bil. takeover bid blocked by Trump admin. on competition and national security grounds; - Fears of foreign ownership/decline of American leadership in 5G chip production

Mergers and Acquisitions

'Ex-ante' review (potential mergers reviewed before they happen, above a certain threshold (currently $84 million) predictive and holistic evidence: merging parties, customers, rivals or suppliers, other interested parties. *Reviewing*: Step 1: Market definition (product and geographic) - crucial and contested!! Step 2: Measure current market concentration with HHI Step 3: Measure concentration in relevant markets post-merger with HHI. Step 4: Approve/Deny the merger or Approve the merger with conditions (or remedies) - for example, agreement to divest units that raise competitive concerns.

Abrams v. United States 1917

(Instrumental vs. justice/rights-based argument for diversity) Defendants convicted for printing 2 leaflets and throwing them from the windows. One denounced sending troops to Russia and the other denounced war. Defendants charged for inciting resistance to the war. One of the judges, Justice Oliver Wendell Holmes stated that "the ultimate good desired is better reached by free trade in ideas... The best test of truth is the power of the thought to get itself accepted in the competition of the market." tl;dr: diversity of ideas is good. Despite this, the Defendants were convicted to 20 years in jail.

USA PATRIOT Act (2001)

(Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism) New and expansive definition of domestic terrorism Banking regulations to combat money-laundering Enhanced surveillance techniques Updating phone to Internet based communications Patriot measures have become permanent parts of the intelligence landscape

Broken World Thinking

*'Livelihood' repair workers* - people who repair technology for a living, turn out to be essential elements in the success and sustainability of technology ecosystems in the global South. growing amateur repair movement, *Things fall apart* - and that a great deal of human skill, innovation, and ingenuity is invested in the ongoing maintenance and operation of order in the world, including our technological systems and infrastructures. One of the great limits of a Silicon Valley-centered imagination of technology and innovation is that it obscures that work, those costs, and the remarkable skill, range, and depth of human technological engagements with the world. Forms of technical skill, knowledge and innovation to be found in repair work, Networks of learning and transmission and learning that support this work, (dis)connection with formal initiatives.

Katz (1967)

*Case Details*: Katz was suspected of transmitting gambling information over the phone to clients in other states, so Federal agents attached an eavesdropping device to the outside of the public booth in which Katz frequently conducted his business. Using those recordings, Katz was convicted on the basis of illegal transmission of wagering information. Katz later appealed that the recordings could not be used as evidence against him *Questions/ Significance*: Does the 4th amendment protect against unreasonable searches and seizures require the police to obtain a search warrant to wiretap a public pay phone? Does the "right to privacy" extend to public places? Is a physical intrusion necessary to constitute a "search" *Court Decision* Katz is entitled to 4th amendment protections for his conversations and that physical intrusion into the area he occupied was unnecessary. "The Fourth Amendment protects people, not places;" regardless of if the location is public, a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a "reasonable expectation of privacy"

Explicit vs. Implicit bias

*Explicit* -Conscious/declared/available to introspection vs. *Implicit* - Unconscious/accumulated through stories/experiences/images, normalises bias, causes lack of diversity due to biases formed by culture + pipeline. Schemas, categories and stereotypes, e.g. Diversity in Silicon valley

Copyright Reform

*Limiting/rolling back*: - Improving ease and efficiency of licensing (e.g. Creative Commons) - Strengthening/upholding current exemption clauses (first sale, fair use) -Overturning/limiting anti-circumvention provisions (esp. for otherwise legal uses - e.g. fair use) - Curbing copyright abuse (e.g. bogus DMCA takedown notices + settlement letters, copyright trolls) - The 'orphan works' problem, (copyrighted work whose owner is impossible to identify or contact + mass digitisation). *Extending/strengthening*: - Strengthened/streamlined enforcement (incl. infringement detection, e.g. Youtube's Content ID) - Embedding copyright in other kinds of law (e.g. Higher Education Opportunity Act 2008: mandatory education, 'legal alternatives' and 'technological deterrents'.

Interpretations of the 1st Amend.

*Literal* - Congress shall make no law regarding speech; the free market of ideas will prevail *Interventionist* - government action needed to allow for a free and fair "public sphere"

Factors that lead to a natural monopoly in telecommunications

*Network effects* - services whose value increases exponentially with each additional user - telephony (AT&T) and telegraph (Western Union) *Economies of scale and density* - high fixed costs for the production of first unit; low marginal costs for the production of each additional unit *Monopoly leveraging* - use of market power in one industry to control adjacent markets (vertical and horizontal integration) Vertical Integration - extension of business operations into industries of different steps in production process Horizontal Integration - increasing production of good in same part of production process, acquisitions, mergers *Switching costs* - costs incurred by a consumer for leaving a network for a competitor *Interconnection Policy* - the rules and policies governing interoperability (compatibility) between networks - at the time did not favor compatibility between AT&T and independents

Varieties of ethics

*Normative/prescriptive* - how SHOULD we act, and what are the moral bases of that action? *Descriptive ethics* - how DO we act? (what values do people actually hold and act on?) *Applied ethics* - how DO/SHOULD we act around domain, question, or situation X?

Patent Problems

*Proliferation of 'bad' patents*: Vague, trivial, obvious patents with 75% granted, also can be continually reapplied for leading to inefficiencies in the system. *Patent Thickets*: numerous and overlapping patents that *crowd* a certain space, product, or industry. Samsung, Microsoft, Apple all have huge patent portfolios (with many overlaps) in case of patent war. *Forum Shopping*: choosing most favourable courts for patent lawsuits (e.g. East Texas), ended in 2017 due to TC Heartland vs Kraft (SCOTUS ruling). *Patent troll*: a company which accumulates patents and gets money from lawsuits. Since they do not make a product, they can not get counter-sued. Often extort money from people/small companies that cannot afford legal costs. *2011 America Invents Act*: Broadens the range of "prior art", expands PTO staff. *Patent Wars*: Apple vs Samsung (and all other major tech companies). 2011, Apple sues Samsung over smartphone shape and GUI elements. Jury awards $1 bil. (later reduced to $400 mil.) SCOTUS reverses decision. Legal fees between Apple and Samsung were $20 bil. more than research + development.

Copyright

*Protects*: - Production and sale of copies or reproductions - Import/export rights - Derivative works (e.g. movie based on book) - Public display or performance Does *NOT* protect: - Private display, consumption or performance - Underlying ideas, facts, discoveries - Restrictions on quotation for purposes of criticism - Individual rights for work created under 'work for hire' doctrine *Copyright exclusions*: - First sale doctrine ("copyright is extinguised at the point of first sale") - Educational uses (limited classroom copying) - Backup copying of computer programs, software, and purchased media (under Audio Home Recording Act 1992) - Fair Use Challenges: - Digital copying + distribution - Digital production - Mass digitisation - Expression of copyright intent Important: - Exists upon creation (different from patents so no registration required) - Is a transferable right so it can be bought, sold or licensed - Remedies: fines, injunctions and criminal penalties.

New technologies overcoming/exacerbating social inequalities

*Regional inequalities* *Local* - e.g. Silicon Valley and individuals not in tech through housing prices, cost of living, congestion etc. *Global* - special economic zones, export-processing zones, and other regional agglomerations. Globalising tech innovation and leadership ('leapfrogging' one leading company that pulls others in). e.g. Malaysia Multimedia Super Corridor *Workplace Hierarchy* - How new tech can reinforce + deepen hierarchies. e.g. electronic calendars in medical practice, exposed inequalities rather than communications, surgeons/specialists who wanted to keep schedule private. *Usability inequalities* - e.g. development of the GUI, breakthrough in usability, a disaster for the visually impaired (and leading to new accessibility guidelines and requirements). *Technology hurting wages/employment* - destruction or deskilling of jobs through automation, reducing geographic barriers, exposing local workers to new forms of global competition.

Foundations of ethics

*Virtue ethics* (Aristotle) - acts that uphold moral virtue and development of the actor. *Consequentialism* (acts are justified by their consequences) - e.g. Utilitarianism, the greatest good for the greatest number. *Deontological* (Kant) - rightness inheres in the act, not the outcome.

Anti-competitive collaboration among competitors

- Agreements to fix prices/output, rig bids, or divide up markets by territory are per-se illegal - Pro-competitive and anti-competitive actions to be weighed against each other, assessed under the 'rule of reason' (pro-competitive examples: things that support efficiency of price and production, innovation, long-term consumer choice and development) *Antitrust safety zones*: coordination among non-dominant firms, collaborative R&D, some kinds of joint ventures, consortial standards organisations, etc.

The Digital Millennium Copyright Act (1998) (DMCA)

- Brings U.S law into alignment with World Intellectual Property Organization provisions - Safe Harbor: provision for ISPs/sites whose users post/share infringing materials (DMCA take down notices) - Anti-circumvention: bars circumvention of access controls -Periodic review of DMCA exemption of access controls.

Antitrust and Competition Policy

- Structure and conduct considerations (monopolisation vs. earned monopolies) - Shared jurisdiction: FTC or DoJ + FCC (for communication-related cases, operating according to a wider public interest standard plus private lawsuits). *Market definition* is KEY (e.g. coffee is a geographic market), *Hypothetical monopolist test* - how would other firms respond by adjusting price, this confirms that the good firms in question occupy a common market.

OECD Privacy Guidelines

1. *Collection limitation*: There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject. 2. *Data quality*: Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date. 3. *Purpose specification*: The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfilment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose. 4. *Use limitation*: Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with Paragraph 9 except: With the consent of the data subject; or By the authority of law *Security safeguards*: Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data. *Openness*: There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller. *Individual participation*: An individual should have the right: to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him; to have communicated to him, data relating to him within a reasonable time; at a charge, if any, that is not excessive; in a reasonable manner; and in a form that is readily intelligible to him; to be given reasons if a request made under subparagraphs(a) and (b) is denied, and to be able to challenge such denial; and to challenge data relating to him and, if the challenge is successful to have the data erased, rectified, completed or amended. *Accountability*: A data controller should be accountable for complying with measures which give effect to the principles stated above.

Ethical analysis steps

1. Recognise issues, 2. Consider parties involved, 3. Gather relevant information, 4. Formulate action, 5. Act 6. Reflect on outcome (incl. intended and unintended consequences).

Antitrust: Microsoft (2001)

1998 suit brought by DOJ, *THE* antitrust case of the late 90's - 00's. *Issues*: - anti-competitive behavior to maintain operating system (OS) dominance (esp. exclusionary deals with 'OEMs (Original equipment manufacturer)' and ISPs to load MS and not other OS) - 'bundling' of Internet Explorer (IE) w Windows OS and giving away IE at deep discount, for free, or for pay (predatory pricing) *Microsoft defense*: - we don't have market power (relevant market is 'platforms', not OS) and if we do it's temporary - consumers benefit from continued MS innovations, and innovation/quality of an integrated system. *Outcome*:  - MS required to open APIs to third-party developers MS must end exclusionary OEM and ISP contracts 5 year oversight of MS records, systems, and agreements.

Intellectual Property

A work/invention for which one has rights and may apply for a patent, copyright, trademark. *Trademark* - commercial ownership of signs or symbolic representations e.g. colours, registered or 'common law' rights. *Trade secrets* - (non-public information concerning commercial practices or proprietary knowledge of a firm - sometimes implicated in patent or antitrust law) *Motivations for intellectual property*: - Promote innovation, US Constitution "to promote the progress of Science and useful Arts" - "balancing act" (goldilocks zone), protection and dissemination of art, ideas, products etc. Note: In US, intellectual property is framed as a utilitarian and economic right, not a natural or moral one. (Important in implications on how we view ideas, imagination and culture).

Echo Chambers

An echo chamber is a metaphorical description of a situation in which beliefs are amplified or reinforced by communication and repetition inside a closed system. By visiting an echo chamber, people are able to seek out information which reinforces their existing views. This may increase political and social polarization and extremism.

Matal v. Tams 2017

Asian-American dance band seek to trademark the name 'the Slants' and are denied by US Patent and Trademark Office on grounds that the name may be racially offensive. Tams are not given trademark by Patents office, because Slants deemed derogatory. SCOTUS sides with Tams, citing that the 1st amendment protects the freedom to express "the thought that we hate".

Structural separation

Breaks up larger corporations to smaller corporations; *AT&T divestiture* - old AT&T (vertically integrated) broke down into 7 Regional Bell Operating Companies (local services, baby bells) + AT&T (long distance) + western electric.

1956 AT&T Consent Decree

Brought in 1949 to contest leveraging of monopoly power into the (nascent) computing industry + ongoing interconnection abuses Settlement: AT&T limited to 85% of national telephone network; spins off its Canadian and Caribbean divisions; and *opens patents and effectively divests from computing industry*

Formal Models of ethical analysis

Can surface missed or neglected considerations (e.g. forgotten stakeholders, missed harms, residual categories, etc.) Can help separate factual from ethical disputes Can reveal unfounded or unshared assumptions and errors We're social creatures (and must coordinate our values/ethics/actions with others) Help externalize choice (we live in contexts of action, but also justification): resources for collaboration and accountability Provide resources for accountability over time

Residual categories

Categories or characteristics that don't fit into exisiting structure. No category, falling between categories, membership in multiple categories (of what are supposed to be binaries), membership in a recognised (but non-normative, or non-assumed) category.

Price Discrimination

Charges different groups at different prices for the same good/service. - Illegal if done on the basis of race, religion, nationality, gender or done in violation of antitrust laws (price fixing between competitors, abuse of monopoly, etc) - Conditions supporting price discrimination: reveals consumer preference; restriction of comparative pricing information; effective market segmentation; variable price elasticity of demand, low marginal costs; effective market power (no subs).

Professional Ethics

Codify and resolve commonly encountered ethical situations Act as resource within professional ethical disputes Protect trust/integrity of professional fields vis-à-vis outside audiences Hold expert knowledge and action accountable (cf. medicine, law, education, etc.)

Whitney v. California 1927 (1st. Amend)

Conviction of Whitney for helping to establish the Communist Labor Party of America upheld by the court. But most striking and lasting feature of case is Brandeis' concurrence, including line *"the best antidote to bad speech is more speech"*, and his argument/rationale for the First Amendment as central to democratic process. (Whitney v. California later explicitly overturned by SCOTUS in Brandeberg v. Ohio (1969) and Whitney pardoned by California governor on strength of Brandeis' opinion.

R.A.V v. St Paul 1993 (1st. Amend. Hate Speech)

Cross burning on a lawn overturned because statute was too broad and not content neutral - legislation is hard to write and enforce at a state level.

Virginia v. Black 2003 (1st Amend. Hate Speech)

Cross burning on with the intent to intimidate is not protected under 1st amendment.