Welcome back for another week of What's Next, where we report on the intersection of law and technology. If 2020 is anything like 2016, we're in for a long year. Rick Hasen, an election law expert and professor at the University of California, Irvine, forecasts the perils and proposed solutions to election interference ahead of the presidential election. Plus, presidential candidate Tulsi Gabbard sues Google with the help of Big Law. And legal experts react to the Department of Justice's settlement regarding the proposed T-Mobile and Sprint merger. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster3.

Rick Hasen, chancellor's professor of law and political science at the University of California, Irvine.

Getting Out the Voting Interference

Robert Mueller, the special counsel who investigated Russian interference in the 2016 presidential election, emphasized last week that the interference in the 2016 presidential election was not a one-off event. “They are doing it while we sit here. And they expect to do it during the next campaign,” Mueller said in his congressional testimony last week. A 61-page report from the Senate Select Committee on Intelligence sketches out just how helpless a local election IT staffer is against “Russia's cyber army.” Rick Hasen, chancellor's professor of law and political science at the University of California, Irvine, says Congress likely won't be passing election interference legislation on a federal level. Instead, the United State's counties and states are all that's between the 2020 presidential election and Russia's hoard of hackers.

Answers have been edited for length and clarity.

➤➤ What are some of our biggest election interference threats? If you think about the 2016 election, one kind of interference we saw was the intrusion into voter registration databases, which was the subject of the recent Senate report that shows that Russian government agents and others at least probed the election systems of likely all 50 states. These are not the systems that would count votes, but they keep records of people who are eligible to vote. So, the concern is that someone can mess with the voter registration databases or hold it hostage. Under this category, another potential form of interference is with other parts of infrastructure, such as the electrical grid or disruptions that could mess with Election Day.

➤➤ What makes our voting infrastructure particularly vulnerable? The fundamental piece of information you need to understand the threat is that our election system in the United States is highly decentralized. This is unusual in advanced democracies. Usually the national government would be the one conducting the election on uniform machinery with uniform standards. Instead, the states have primary responsibility for running even federal elections, and that power is often devolved to counties. So not only are there variations between the states, there are variations within the states. Those who are trying to prevent hacking and other forms of interference have to be aware of not one system, or even 50 systems, but thousands of systems with thousands of potential points of vulnerability. Some of those places that run elections are going to be resource starved counties without adequate staffing or money to deal with the threat of a concerted attack from a foreign adversary.

➤➤ Are there any legislative proposals to create a more centralized system? There's been a tremendous amount of resistance on the Republican side to centralization. There's even resistance from some quarters toward assistance from the federal government out of a belief that the Department of Homeland Security's recognition of the voting process' critical infrastructure was a power grab. We did have Congress pass some legislation that would provide additional funding to upgrade voting machinery to make it less susceptible to interference. Additional proposals, for which there has been bipartisan support, have been blocked in the Senate by Mitch McConnell. So, it's unlikely that we'll see further significant legislation before 2020. We're seeing things happening state-by-state in places like Georgia and Pennsylvania, which had among the most insecure voting systems, moving to adopt new voting machinery.

➤➤ What lawsuits are you watching that could shape this area of the law? One of the most important lawsuits is ongoing in Georgia, where there's been a fight over the security of voting machines. Georgia announced that its going to buy a brand new voting system, and some of the groups involved in the ongoing litigation are not satisfied that the new system is sufficiently secure. There's a divide among election reform and integrity proponents as to whether this newest wave of voting technology, which uses ballot marking devices, is secure enough. What these machines do is print out a QR code or barcode, as well as the names of candidates and ballot measures that the person voted for, on a printed receipt. When the ballots are counted, the code is scanned. The question is whether that machine-readable code, which is the basis for the vote count, is secure enough. Opponents say we don't know what's behind the code. I expect we'll hear something in relatively short order on this litigation, because the plaintiffs are trying to prevent the use of old machinery next year.

Gabbard Sues Google Over Free Speech

Presidential candidate Tulsi Gabbard, who has promised to crack down on big tech monopolies, says Google has a pattern of silencing her speech. That has prompted Tulsi Now Inc., Gabbard's campaign committee, to sue Google for infringing her first amendment rights.

The lawsuit is in the U.S. District Court for the Central District of California before Judge Stephen Wilson, and accuses the tech behemoth of playing favorites without transparency or accountability when it comes to regulating online political speech. The committee alleges that Google shut down Gabbard's Google Ads account for several hours after the June democratic debates. During this critical period, she was the “single most searched-for candidate,” wrote Gabbard's lawyers from Pierce Bainbridge Beck Price & Hecht in the complaint.

Google originally claimed the account violated the terms of service, but then changed its reasoning for disabling the account several times, according to the complaint. Later Google said in a statement, that its automated systems flags unusual activity on advertiser accounts. “In this case, our system triggered a suspension and the account was reinstated shortly thereafter,” Google said.

However, Gabbard's Pierce Bainbridge attorneys Brian Dunne, Dan Terzian and Max Hirsch say that Google simply did not like what Gabbard had to say, so it suspended her account. “This has happened time and time again across Google platforms. Google controls one of the largest and most important forums for political speech in the entire world, and it regularly silences voices it doesn't like, and amplifies voices it does,” they wrote.

The complaint filed on Thursday claims that Google has also manipulated the election by marking Gabbard's campaign emails as spam in its Gmail platform at a disproportionately higher rate than other candidates. The campaign is seeking $50 million in damages from Google.

“While there is no law against a company's employees engaging in political activity, Google is no ordinary company,” the complaint said. “As a result of its power, it helps to run elections with its search results and ad offerings, including exercising unilateral control over nearly all Internet search and search advertising—perhaps the single most important platform through which presidential primary candidates communicate with potential voters, and vice versa. Quite simply, Google could unilaterally and decisively end a presidential candidate's bid for office if it chose to—for example, by tweaking its search algorithm to disfavor the candidate; or blocking the candidate from its ad platforms; or keeping the candidate's communications from getting to interested voters who use Gmail for email communications.”

Sounding Off on DOJ's T-Mobile & Sprint Deal

The Department of Justice reached a settlement with T-Mobile and Sprint on its proposed merger, but not everyone is keen on the concessions. The DOJ is requiring the telecomms companies to divest Sprint's prepaid business, including Boost Mobile, Virgin Mobile, and Sprint prepaid, to Dish Network. T-Mobile must also share its network with Dish for seven years to help accelerate Dish's 5G buildout. “With this merger and accompanying divestiture, we are expanding output significantly by ensuring that large amounts of currently unused or underused spectrum are made available to American consumers in the form of high quality 5G networks,” said Assistant Attorney General Makan Delrahim of the Justice Department's Antitrust Division. Here's what the law community had to say:

 

Google Loon launch event of June 2013.(Photo: iLighter/Wikipedia)

On The Radar

A Loony Patent Settlement A week out from trial, Google has settled an intellectual property dispute with Space Data Corp. over high-altitude balloons. Space Data sued the tech giant for allegedly using confidential information gathered from a tour of Space Data's facilities to fuel Google's Project Loon. The enterprise aims to create a global network of balloons that would enable internet communications just about anywhere. Read more from Scott Graham here.

Like Button Embedders On The Hook Websites with embedded Facebook “like” buttons are responsible for tipping off visitors that their user data will be gathered by the social media company, according to a ruling from the Court of Justice of the European Union. The court found that these sites “can be considered to be a controller jointly with Facebook Ireland,” because both entities set the terms of the data collection. Read more from Caroline Spiezio here.

Top 50 Firms Opt Out of Green Wave As firm after firm opens practices that cater to the growing $10 billion marijuana industry, few AmLaw 50 firms advertise their services for weed-based businesses. With marijuana still labeled a schedule I narcotic, advising and profiting from a federally prohibited venture is still risky for many Big Law firms. Others say the right client base simply has not come along yet. Read more from Patrick Smith here.

Thanks for reading. We will be back next week with more What's Next.