Welcome back for another week of What's Next, where we report on the intersection of law and technology. This week, we do a flyby on how emerging drone laws might be inhibiting journalists' freedom of speech. Plus, a Berkeley law professor shares how the trade secret privilege is preventing defendants from seeing the algorithmic source code used to convict them. And courts might soon see an uptick in lawsuits over website accessibility. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

Journalists, Yale Students Fight Texas Drone Law

Texas journalists pushing back against a state drone law are getting a hand from Yale Law School's Media Freedom and Information Access Clinic. The MFIA has filed a lawsuit on behalf of the National Press Photographers Association (NPPA) and the Texas Press Association claiming that the law barring photojournalists from taking drone images of people or private property is overly restrictive and violates their constitutional rights. The complaint names the director of the Texas Department of Public Safety and the chief of the Texas Highway Patrol. Mickey H. Osterreicher, general counsel for the NPPA, talked with us about how he sees drone laws evolving without the consideration of journalists.

Answers have been edited for length and clarity.

➤➤ How did this group come to take on this case? The NPPA has been involved with and advocating for the use of drones for newsgathering for many years, and, in fact, testified at a hearing of the Texas Legislature on this bill. Despite our efforts to explain the benefits of drone use for newsgathering and the protections provided by the U.S. Constitution and the Federal Aviation Administration, the legislature chose to disregard that testimony and specifically failed to include newsgathering from the long list of exceptions they did allow under the law.

Because we deal with many issues including drones, NPPA does not have the ability to bring a lawsuit like this alone, and pro bono clinics and lawyers like MFIA along with Public Justice and Jim Hemphill of the Austin, Texas, law firm Graves Dougherty Hearon & Moody are essential to the cause of protecting these First Amendment interests.

➤➤ In what ways do you allege the law singles out journalists and violates their rights? Using drones to capture images, still or video, is considered a form of free speech just as any other form of photography. Through case law, photography has been deemed to be a form of expression (without expression there is no speech) protected by the First Amendment. When such photography is done for the purposes of newsgathering, that activity is also protected by the free press clause of the First Amendment. The use of drones should be viewed just like any other newsgathering tool. The Texas law specifically allows drone photography for other professions and purposes, but bans the use of drones for newsgathering, thus violating the rights of citizens and journalists under the First Amendment.

➤➤ What case law do you plan to cite that strengthens your First Amendment claims? Because the use of drones is in its infancy—the FAA Part 107 rules have only been in effect since August 2016—there is very little drone case law. Most of the lawsuits so far have been related to registration. The federal government is still behind its own schedule for rulemaking regarding Remote ID, which in turn will impact night flights and flights over people. States and municipalities continue to enact drone laws and regulations that have yet to be challenged. As with any new technology, the law is always trying to catch up to and keep pace with technology, which in this case is expanding at an exponential rate.

➤➤ What are your biggest concerns with how this area of the law is developing? As we noted, technology moves at an exponential rate while regulations and the law seemingly move at a glacial pace. Over the years, we have seen the law do its best to provide certainty to various fields such as vehicle and traffic rules, intellectual property and manned aviation, but now struggles with such areas as regulating social media and drones.

Our biggest concern is that any regulation use common sense and not be overly burdensome, so as to encourage compliance. It appears that one of the biggest problems is that there are a great number of people using drones who are unaware of the current rules. There have been many uncorroborated stories of drones being sighted flying inappropriately or causing "near-accidents" and creating public hysteria, which is leading legislators to propose knee-jerk reaction bills to protect their constituents but which often are in conflict with federal regulations as well as chilling constitutional protections.

Renewed Calls for Transparent Criminal Justice Algorithms

A few weeks ago, a California congressman introduced a bill that would give criminal defendants access to the source code of algorithms used in their cases. The legislation authored by Rep. Mark Takano is an effort to prevent algorithm developers from invoking a trade secret privilege that interferes with defendant's due process rights.

The bill would apply to technology including facial recognition and analyzing degraded DNA samples.

"Forensic algorithms are black boxes, and we need to be able to look inside to understand how the software works and to give defendants the ability to challenge them," Takano said in a statement. "My legislation will open the black box of forensic algorithms and establish standards that will safeguard our Constitutional right to a fair trial."

The bill was inspired by Berkeley Law professor Rebecca Wexler's 2015 Slate article uncovering how the source code used to help convict defendants is often hidden from them. As a law student, Wexler started seeing cases where private companies were asserting their trade secret rights against criminal defendants. From her intellectual property classes, she learned that judges were giving these developers more protections in this context than they would have gotten in traditional business negotiations.

"Courts were allowing developers to entirely withhold information from a criminal defendant, not disclose it in a limited context with a protective order, not get to seal the record, not get to close the courtroom, but completely withhold the information," she said.

One case Wexler pointed to that demonstrated the need for more transparency around these algorithms is a 2017 trial where Judge Valerie Caproni of the Southern District of New York ordered the disclosure of an algorithm that New York's Office of the Chief Medical Examiner developed with taxpayer money. When analysts reviewed the source code, they found an undisclosed function that was discarding information that could have been useful to criminal defendants.

Under Takano's proposed legislation, defendants would still have to go through the subpoena and discovery process to establish relevance. "Once defendants meet the burden to get evidence they would otherwise be entitled to, but for the fact that it's a trade secret, then the trade secret status really should not block their access in that context," Wexler said.

In March, Idaho became the first state to adopt a law seeking to increase transparency around pretrial risk assessment tools. Wexler said the Idaho provision shows that states are willing to act, and Takano's bill, which was a multi-year project, can be a model for other municipalities.

"Defense representation is not the same thing as business competition and this inappropriate assertion of trade secrets in this context falsely equates the two," she said. "Rep. Takano's bill resets the right balance."

Lawyers Prepare for Flood of Online ADA Complaints

Domino's Pizza is currently ironing out the wrinkles of driverless delivery, but the pizza delivery pioneer has somehow found itself at the center of a court battle over whether places of public accommodation have to make their website or mobile applications compliant with the Americans with Disabilities Act. On Monday, the U.S. Supreme Court denied the restaurant chain's request to review a decision finding Domino's liable for violating the federal civil rights law by failing to make its website accessible to blind customers.

Linda Dardarian, of Goldstein, Borgen, Dardarian & Ho in Oakland, California, was thrilled with the high court's decision to pass on Domino's challenge. Dardarian said the order establishes the Ninth Circuit decision, which said the ADA does extend to the online services of brick-and-mortar places of public accommodation, as the law of the land. "I think that was clear from the natural reading of the Americans with Disabilities Act, but businesses were resisting that," said Dardarian, who specializes in class action employment discrimination and disability access. "They can't resist it anymore. It's just true."

Other legal experts were less optimistic about the ruling. Martin Orlick of Jeffer Mangels Butler & Mitchell in San Francisco said he expects to see an avalanche of ADA filings after the cert denial against companies struggling to keep up with compliance software that is constantly evolving. "Unlike that step that is now a ramp—that ramp is going to be there for generations—that software will be there for generations, but the software generations have a six-month shelflife," he said.

Both Dardarian and Orlick agree that the next battleground over online ADA compliance could be over whether web-only businesses need to comply with the law.

"The question is going to become, the companies that don't have retail stores, are their websites now going to be under scrutiny?" Orlick said. "From 2005 until now, our courts in California have been pretty consistent that for the ADA to apply to a website you need to have a physical nexus. Courts in Vermont and out East have taken a different position. They say, 'This is an internet age. People bank online, they do research online, they go on vacation online, so what difference does it make if you have a retail presence?'"

On the Radar

EU Sics Facebook on Trolls European countries can now order Facebook to take down defamatory posts, after a ruling from the European Court of Justice. Besides empowering national officials to demand takedowns, the decision also requires Facebook to automatically delete content it recognizes as potentially harmful to a person's reputation. "This judgment raises critical questions around freedom of expression and the role that internet companies should play in monitoring, interpreting and removing speech that might be illegal in any particular country," Facebook said in a statement following the court opinion. Read more from Simon Taylor here.

Straight to Pornhub Twenty-two women have sued GirlsDoPorn.com claiming it fraudulently promised their adult videos would only be sold on DVD to private collectors overseas, but the company's operations chief said he made no such agreement. "Most people know that pornography goes online," said Matthew Wolfe, a consultant for the company the plantiffs have dubbed as "the nuts and bolts guy" of GirlsDoPorn's operation. During his testimony last week, Wolfe was questioned about why the full-length videos of the 22 models suing the company were posted on Pornhub, when it's profile on the site is mostly reserved for previews meant to direct viewers to GirlsDoPorn's feature-length subscription content. Wolfe dodged the accusations of retaliation against the women, and said the move was likely a marketing decision. Read more from Scott Graham here.

Can't Buy Me Likes Last week, Facebook settled a legal battle with a New Zealand company that allegedly sold likes, followers and views to Instagram followers. The company, Social Media Series Limited, agreed to pay $500,000 and no longer hock the fake online engagement. Facebook's director of platform enforcement and litigation said that the move is part of its strategy of more frequent and numerous legal crackdowns. Read more from Ross Todd here.

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