»  Updates

Note: This is the webpage for a class from the past that has ended. Information about current classes is available here.

Georgetown tech writing competition: The Georgetown Law Technology Review is holding a writing competition for students writing on topics relating to “artificial intelligence, machine learning, the use of data analytics and/or algorithmic decision-making.” If you’re interested in expanding one of your writing assignments for this course or another course, or submitting a Law Review or IDEA note, I would love to do whatever I can to help you enter and win! Let me know.

»  Overview

This is a short survey minicourse in internet law. It is not an exaggeration to say that the internet has changed almost every area of modern life, and law is no exception. We’ll study the computer and network technologies underlying the internet, how those technologies are challenging the assumptions underlying pre-internet law, and how judges, policy makers, and private actors have responded to those technologies. It’s easy to commit malpractice today by failing to understand how the internet changes legal rules and legal strategies — a lawyer who sends a trademark threat, for instance, without advising her client of the Streisand effect is a lawyer who has failed to serve her client — but by the end of the course, you should be prepared to sort through the legal issues in a case with an eye toward how the internet changes things for your client and for the law.

»  Class meetings and office hours

We will meet on Mondays from 3:00 to 5:00 p.m. in room 102. Because this is a one-credit minicourse, we will meet for the first seven weeks of the term; if we need to cancel a class due to snow or some other conflict, we may extend into the eighth week.

Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 210) and chat or just grab some candy. This semester, I should be in the office most Monday, Tuesday, and Wednesday afternoons, and some Thursdays; if you’d like to set up a specific time to talk, please email me at roger.ford@nulllaw.unh.edu.

»  Materials

The casebook is James Grimmelmann’s Internet Law: Cases and Problems (8th ed. 2018). It’s available in two versions: from Semaphore Press as a downloadable PDF with a suggested price of $30, and as a $65 paperback edition from Amazon. Semaphore Press uses a publishing model that differs from that used by traditional casebook publishers, which you can read about on their website. (The price for the paperback version includes the suggested $30 for the PDF edition, so if you buy the paperback version, feel free to download the PDF too without paying by using the “freeride” button at the bottom of the payment page.)

In addition to the casebook, I may post links to other readings and assignments on this site. I will not be using Canvas or a similar system.

»  Attendance, grading, and collaboration policies

Regular attendance is required, and under the standard ABA rules, you may be barred from taking the examination and receiving credit for the course if you miss more than 20% of class sessions. Attendance will be taken by sign-in sheet, and signing in for someone else is, as always, academic misconduct. An occasional absence is fine, but please let me know in advance.

Because I want to encourage an open and meaningful class discussion — about which more shortly — out of respect for your fellow students’ privacy, I will not be recording class sessions, and I ask that you do not do so. (New Hampshire, for what it is worth, is an all-party-consent state.)

Your course grade will be based on your class participation and a series of short writing assignments.

We are all here to learn about the law, and in general I am all for anything that helps further that goal. This means that, except where expressly told otherwise, you’re free to collaborate with each other and to consult whatever sources you wish in your work for this class. One of those express exceptions is the writing assignments; for those, you are free to discuss the assignment with other students and consult whatever sources you wish, but the writing you submit must be entirely your own.

»  Class discussion, diversity, and inclusion

This is a course centered on discussion. Except for some technical material on the first day, I will not lecture, so it is critical that you come to class prepared. This means you need to have read and considered the assigned materials and be ready to discuss them with me and with the rest of the class. I cannot stress this enough: If you do not want to be an active participant in class discussion, do not take this course. Participation is required, and you will not receive a passing grade if you do not contribute meaningfully to the discussion. In this course, we are all here to learn from each other, and if you don’t contribute to that exchange, you are shortchanging your fellow students.

This learning process only works if the classroom is a welcoming and inclusive place that supports a diversity of thoughts, perspectives, and experiences, and honors your identities, including race, gender, class, sexuality, religion, ability, and so forth. I want you to feel comfortable in class, free to express your experiences and opinions — in a professional and respectful manner — and learn from the many diverse experiences and opinions of your classmates. If there’s anything that is making you uncomfortable, inside or outside of class, please come and talk with me about it, and I will do anything I can to help so long as it’s consistent with the goal of learning. And if you use a name or set of pronouns that differ from those in UNH’s records, please let me know.

In an ideal world, the law would similarly reflect the full, diverse array of thoughts, perspectives, and experiences. Law, though, is a field that is historically built on a small subset of privileged voices. We will make an effort to read materials from a wide array of authors and perspectives, but we can only do so much given the way that legal doctrines and ideas have developed. I am counting on each of you to help surface these biases and limitations as we make our way through the course.

»  Competencies

In 2013, the faculty approved a list of competencies that are important to the practice of law. For a list of those competencies, indicating which will be covered in this class, click here.

»  Schedule and assignments

Last updated: October 19, 2018.

I will post reading and writing assignments here over the course of the term.

Week 1: Introduction and the nature of cyberspace. Read this syllabus, the casebook introduction, and casebook sections 1.A (skip the cryptography primer for now), 1.B, and 2.A through the two Voyeur Dorm cases (and so through the questions at the top of page 68). This is longer than I would normally assign for one class. A lot of this is background; read these parts for basic understanding, without worrying about every little detail as you might in a normal law-school class.

Writing assignment 1 (after class 1). Read the 5thWheel problem on pages 691–692 of the casebook. Don’t answer the questions in the problem. Instead, write a short reaction paper (aim for about 750–1,000 words) assessing the Commission’s actions under Johnson and Post’s framework for evaluating the legitimacy of a regulatory action. Do so from the perspective of an objective outside observer, not the company’s lawyer. Prioritize clarity and thoughtfulness over formality and adherence to norms; no need for footnotes or citations or anything like that. Send it to me sometime before the second class.

Important formatting demands about which I am irrationally insistent: Send me your paper as a PDF with the filename “{your last name} assignment 1.pdf” (e.g., “Ford assignment 1.pdf”) and the email subject line “Internet Law assignment 1”. Do not vary these at all; do not include your name in the subject line or your first name in the filename or insert random hyphens or anything like that. And in the document itself, please number your pages; put your name at the top of every page; and include some sort of title. I ask for these small courtesies because they make it easier for me to find your paper in my email and sort all the files once I save them to my hard drive and tell who wrote a paper when I print it out; every time you follow them, it will make the world a slightly happier place. Also, don’t use Times New Roman, which is a terrible font.

Week 2: Jurisdiction. Read the following pieces of the casebook: from section 2.B, everything except the gambling treaty problem; from section 2.C.1, the introduction, Burdick, Spanski, and the SPEECH Act excerpt; and all of section 2.C.3. (For this and all other weeks, reading a case or section also includes the questions after.)

Week 3: Speech. From chapter 3, skim section 3.A for background (especially if you haven’t studied the First Amendment in any of your other courses) and read sections 3.B and 3.C (minus the part on impersonation). No writing assignment this week.

Writing assignment 2. Read a little bit about California’s new consumer-privacy law. (Some of the many pieces about the bill and its advantages and disadvantages are available here, here, here, here [with important update here], and here.) In the wake of the California law, tech companies and the Chamber of Commerce, which previously opposed a comprehensive federal privacy law, have come out in support of one — so long as it preempts the California law.

Take the perspective of a lawyer working for a big tech platform company like Google or Facebook. Assess the California law’s limitations and vulnerabilities — is it unconstitutional? Does it apply to the company? How many users does it apply to? Are there ways the company can limit its effects under existing law, or should it press hard for a federal law?

Email me your take before our fourth class. Follow the formatting instructions from the first writing assignment except with a “2” everywhere there was a “1.”

Week 4: Section 230. Read section 3.D of the casebook. This is by far the most important material in the entire course. Learn it, know it, live it. And since this is a short assignment, after you’re done, maybe think about going back and reading it again just to reinforce how fundamentally, critically important it is.

Writing assignment 3. Consider these two disputes between Facebook and the state of Washington:

  1. In late 2017, The Stranger, a weekly newspaper in Seattle, asked Facebook (along with Twitter and Google) for information about advertising for the city’s mayoral election — information like which ads were run, who paid for them, the amount, and so forth, to which the public is entitled under city and state law. The companies provided nothing, so the state attorney general sued. (The lawsuit is pending. Nothing substantive has been decided yet. As of this writing, the current skirmish involves whether Facebook improperly removed the case to federal court.)
  2. In 2016, ProPublica reported that Facebook’s platform let advertisers prevent African-American, Hispanic, and other users from seeing their ads based on their race, though it didn’t offer the option to exclude white users. The state attorney general launched an investigation, which eventually resulted in Facebook agreeing to remove the option worldwide.

Write a short paper answering two questions: (1) Is Facebook immune from liability under § 230? In both disputes, or are there relevant differences? (2) Let’s say a member of Congress wanted to add campaign-finance laws to § 230’s list of exceptions. Is this a good idea? What are the best arguments for and against doing so? Be sure to consider the perspectives of everyone involved — candidates, voters, platforms like Facebook, and so forth.

Follow past submission and formatting guidelines, iterating as appropriate.

Week 5: Platforms and speech. Read sections 9.A and 9.B of the casebook.

Writing assignment 4. Now that we’ve spent a class and a half on § 230, look back at your analysis in writing assignment 3. Send me an updated analysis. If you still have the same views, feel free to send me the same thing again (updating titles and filenames and so forth). If not, send me your new take. Follow past submission and formatting guidelines, iterating as appropriate.

Week 6: Access to computers. From the last assignment, review section 9.A of the casebook; we will likely skip section 9.B unless there is a case you’re especially interested in discussing. Then, read sections 5.A (skip the problems at the end) and 5.C of the casebook.

We’ll also spend a few minutes deciding what to cover in our last class. So take a look at the remaining sections of chapter 9 and the sections of chapter 10, and come with some thoughts on which sections look interesting to you. (Personally, I think some of the most interesting stuff in the course is in section 10.C, on defective software, but your mileage may vary.)

Week 7: Emerging issues. From week 6, review the material from section 5.C. Then read (1) the “question” at the top of page 640 and the Kennison case following it; (2) the technical primer on cryptography starting on page 39; (3) section 10.B (skipping the Illinois regulation and the IRS notice); and (4) section 10.E. No more writing assignments.

Edited to add on October 16: After class 6, I mentioned that the economist Nouriel Roubini had testified at a Senate Banking Committee hearing on cryptocurrencies and blockchains. Here is his testimony, with the delightful title “Crypto is the Mother of All Scams and (Now Busted) Bubbles While Blockchain Is The Most Over-Hyped Technology Ever, No Better than a Spreadsheet / Database.”

Edited to add on October 19: See also The Onion’s Guide To Blockchain Technology.