Hey there What's Next readers! This week we'll be looking at a constitutional challenge to the controversial new Section 230 law aimed at curbing sex trafficking, along with what the EU's ginormous antitrust fine against Google says about big tech's future under the microscope of international regulators — plus a few additional bits from the intersection of law and tech.

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Watch This Space: Is FOSTA Unconstitutional?

 

You all remember the debate in Congress over FOSTA (aka SESTA), the bill approved earlier this year carving a hole in Section 230 immunity for Internet companies when it comes to sex trafficking-related web content. Now, the battle has moved to the courts. Last week, a D.C. federal judge held the first hearing in a motion for preliminary injunction filed by the Electronic Frontier Foundation and others to pause enforcement of FOSTA. EFF says the law is “muzzling Internet users and forcing online platforms to censor their users.”

EFF lawyer David Greene explained to me via phone that in the organization's estimation, FOSTA ends up “criminalizing … protected speech and also speech that is not closely related to sex trafficking”, which is the focus of the law. To drive the point home, he pointed to one of the plaintiffs in the case: A human rights group called the Woodhull Foundation. The motion requested an oral hearing “given the threat FOSTA poses to Plaintiff Woodhull Foundation's ability to engage in protected online speech in connection with its annual Sexual Freedom Summit.” Court filings said the group was uncertain whether live tweeting about the conference's Sex Work track would violate FOSTA.

The EFF also argues in its motion that plaintiffs' “are likely to succeed on the merits” given alleged violations of the First Amendment, due process, and the imposition of “ex post facto” penalties. The chances of halting a law nearly unanimously approved by lawmakers may seem like a long shot to some. But Santa Clara University Law Professor Eric Goldman says that members of Congress never understood the possible unintended consequences of the law. “That's why the court challenge is so important.”

In Goldman's telling, it's due to fear of FOSTA enforcement that “the internet shrank” — with companies like Craigslist shutting down sections of their websites to avoid being held responsible for user ads for things like prostitution. “There were things taking place online that just went away. Now if those are only illegal activities, we'd say that's a good thing. But there was far more than that. There were additional legal activities that were driven offline because of the law.”

There is, of course, another side to the debate. Mary Mazzio, an advocate for child sex trafficking survivors, told NBC News this week that “child sex trafficking survivors, along with the community of adult survivors, nonprofits, and NGOs who fought for the passage of FOSTA-SESTA, are dismayed to find that EFF … has continued its relentless assault on any attempt to hold websites accountable that engage in criminal conduct.”

➤ Look Ahead: This will be a contentious legal battle, and the EFF doesn't have any illusions about what's in store. “We always expected the government would oppose our case vehemently. And I think that's going to happen,” Greene said.

Photo: Shutterstock

On the Radar: Three Things to Know

 

➤ Ghost in the machine. Election hacking is a topic we can't manage to escape these days (unless you've managed to fall off the grid this summer … more power to you). But one tidbit that didn't make big headlines is a lawsuit against South Carolina over the security of its paper voting machines. Filed in the U.S. District Court in Columbia, the lawsuit alleges South Carolina's machines' “deep security flaws” make them a potential target for hackers. The lawsuit goes on to say that without a system for reliable counting, South Carolina voters are being denied their constitutional right to vote.

➤ Patenting blockchain? Blockchain is often touted as the way of the future in filing an application to patent its use of the technology in its evidence management platform? My colleague Rhys Dipshan spoke with the company's founder, Paul Sachs, who characterized the decision as a way to to assuage courts' concerns over storing information in the cloud. “One difficulty is a courthouse saying, 'You're asking us to host the digital evidence data for our cases on the cloud and not on a server that we own and trust. But how can we trust you?' And the answer to that is blockchain.” Still, for the blockchain world's decentralization advocates, this smells like a patent fight waiting to happen.

➤ California ambitions. With so much big tech action, California is home to some hot dockets, and legal tech company Gavelytics is keeping that front of mind in its own ambitions. The judicial analytics provider announced last week its database is now covering Santa Clara County Superior Court, smack in the middle of Silicon Valley. The company is undertaking an effort to incorporate one new California county per month through the remainder of 2018. It took an additional step this week in licensing content from a publisher that a Gavelytics release says “includes revealing and actionable quotes from attorneys about each California Superior Court judge, covering such factors as: temperament and demeanor; natural proclivities; intelligence and knowledge; motion practice; handling trials; settlements; and continuances.”

Google's Antitrust Fine: An 'Icebreaker' Kicking Off a Big Tech Clampdown?

 

“An icebreaker.” That's how University of Tennessee College of Law's Maurice Stucke sees the EU's latest major smackdown of Google, with a record $5 billion for antitrust violations involving Android. As my colleague Caroline Spezio reports, the European Commission's action could be the harbinger of “a larger global antitrust crackdown against Big Tech's most dominant companies.”

But why do companies that go largely unscathed by U.S. regulators get hit by EU watchdogs? Spezio writes structural differences may be part of the reason, as EU law “prohibits marketplace abuse from a dominant player in an industry,” through specific benchmarks, a concept that doesn't exist in U.S. antitrust law.

Yet ideology is also at play. Stucke tells Spezio the U.S. is in “a dry spell of antitrust enforcement” due to views shifting away from “the once-accepted idea that 'monopolies were bad'.” EU regulators march to a different beat. Stanford Law's Douglas Melamed tells Spezio that EU antitrust enforcers are more likely to focus efforts on big players than their smaller counterparts.

The issue isn't quite black and white along EU/U.S. lines. While President Trump had harsh words (rather, characters) for the EU, Tweeting that it has “taken advantage” of one of “our great tech companies,” Senator Elizabeth Warren held its efforts as exemplary. She tells CNBC: “No. What it shows is that Europe is serious about antitrust laws, Europe is serious about anti-competition laws, and the United States is lagging. We were once the leaders in the world on this, and no more.”

➤ Look Ahead: The EU's antitrust action against big tech seems unlikely to spur any similar U.S. enforcement, though it may be a preview of its own evolving approach. Less than a week after fining Google, the EU hit four consumer electronics manufacturers with antitrust fines.

That's it for this week! Stay tuned for What's Next!