Tech Policy Podcast

On November 8, the Supreme Court will hear oral argument in FBI v. Fazaga, an important case on the meaning and scope of the Foreign Intelligence Surveillance Act. The system of domestic foreign-intelligence spying created by FISA has been plagued with abuse and controversy. Could the Court use Fazaga to address some of the system’s shortcomings? Elizabeth (Liza) Goitein, co-director of the Brennan Center for Justice’s Liberty & National Security Program, joins the show to discuss the case, to give a preview of the argument, and to explain the broader flaws in the FISA framework. For more, see the amicus brief the Brennan Center (joined by TechFreedom) filed in Fazaga.

Generation Z are the first true digital natives—people who cannot remember a time before the internet. This gives Gen Z a unique perspective, but it is also driving concerns (mainly among older generations) about the potential drawbacks of growing up in a digital age. Kir Nuthi, public affairs manager for NetChoice, and Rachel Altman, director of digital media at TechFreedom, join the show to discuss how Gen Z use social media, the challenges of content moderation, and the moral panic over teen social media use. For more, see Kir’s op-ed on content moderation at Fortune.com.

The lively debate over the future of antitrust law continues. The Neo-Brandeisians want an aggressive, “big is bad” approach. The Chicago School defends the current system and its consumer-welfare standard. Which side has the better of the argument? Could it be that neither does? Aurelien Portuese, Director of ITIF’s Schumpeter Project on Competition Policy, joins the show to discuss the problems with antitrust populism, the flaws in the antitrust debate more generally, and his vision for a dynamic antitrust policy centered around innovation. In addition—naturally!—Aurelien has some thoughts to share on the great Joseph Schumpeter, the economist who popularized the term “creative destruction.” Also joining the show is TechFreedom Legal Fellow Andy Jung.

Last year, Epic Games made a splash with its lawsuit / ad campaign challenging the rules and commission structure of the Apple app store. Last week, a judge ruled in favor of Apple — but only just, and not in full. Geoff Manne, president and founder of the International Center for Law & Economics, joins the show to discuss the decision, what it means for Apple, and how it could shape the future of antitrust policy. The quote that Geoff and Corbin grasp for, about seven minutes in, is John Hicks’s quip that “The best of all monopoly profits is a quiet life.”

American politics, media, and culture are realigning in ways that are, as of yet, hard to identify and define. Marshall Kosloff, co-host of The Realignment podcast, joins the show for a wide-ranging discussion about what these shifts are, what they mean for the country, and how institutions like Big Tech and the Republican Party are adapting (or failing to adapt) to them. For more, check out The Realignment, as well as another of Marshall’s podcasts, The Deep End.

Because most attacks on social-media websites’ free-speech rights are dismissed under Section 230 (which is good!), there are comparatively few cases fleshing out those websites’ right to editorial control under the First Amendment. So although it’s clear that that right to editorial control is strong, its exact contours remain imperfectly defined. Mailyn Fidler, a fellow at the University of Nebraska Governance and Technology Center and an affiliate of the Berkman Klein Center for Internet and Society at Harvard, joins the show to discuss The New Editors: Refining First Amendment Protections for Internet Platforms, her recent paper on this topic.

Apple recently announced that its next operating system will include new features to combat the spread of child sexual abuse material. Privacy advocates have raised concerns about how these new features could be abused by governments, hijacked by bad actors, or expanded by Apple or others. Apple’s Chief Privacy Officer, Jane Horvath, joins the show to discuss the new features, to explain how they work, and to address some of the privacy objections that have been raised.

In 2015, Elizabeth Holmes and her firm, Theranos, seemed poised to revolutionize blood testing. Everything began to unravel in October of that year, however, when the Wall Street Journal published an investigative report questioning the accuracy of Theranos’s “Edison” blood-testing machine. Holmes was indicted in 2018. Her trial begins later this month. Sara Randazzo, a reporter with the Wall Street Journal, joins the show to discuss Holmes’s rise and fall, her upcoming trial, and what her case might mean for Silicon Valley start-up culture. You can follow Sara’s work, including her reporting on Holmes’s trial, here.

Section 230 is as important — and as widely misunderstood — as ever. TechFreedom’s Free Speech Counsel, Ari Cohn, joins the show to discuss the latest lawsuits, legal theories, and legislative bills swirling around the great charter of free speech on the Internet. Update: Ari and Corbin fret, on the show, about the Second Circuit’s grant of rehearing in Domen v. Vimeo — a case in which the panel straightforwardly applied Section 230(c)(2). It turns out that the court granted only panel rehearing (not en banc rehearing), and that it did so simply to issue a slightly amended opinion. Phew! Better yet, the amended opinion cites an article written by Berin, our president, and Ashkhen, a former host of this podcast. For a discussion of that article, Section 230: An Introduction for Antitrust & Consumer Protection Practitioners, check out Episode #280.

Both the Democrats and the Republicans are introducing antitrust legislation targeted at tech companies. Elizabeth Nolan Brown, senior editor at Reason, joins the show to discuss some of the recent bills, as well as how each party is trying to use antitrust law to further political ends unrelated to antitrust. For more, see Elizabeth’s cover story for this month’s Reason magazine: “The Bipartisan Antitrust Crusade Against Big Tech.”

Are social media websites more like newspapers (with strong free speech rights) or common carriers (with weaker free speech rights)? Enjoining enforcement of Florida’s Internet speech law, SB 7072, a federal judge recently wrote that they’re somewhere “in the middle.” Eugene Volokh, of UCLA School of Law, and Berin Szóka, president of TechFreedom, join the show to debate whether that’s right. For more on Eugene’s position (i.e., some aspects of social media can properly be analogized to common carriage), see Eugene’s recent post, “Social Media Platforms as Common Carriers?,” at The Volokh Conspiracy. For more on Berin’s position (i.e., social media is nothing like common carriage), check out the amicus brief TechFreedom submitted in the Florida litigation.

Border agents have broad authority to search the smartphone or laptop of anyone entering the country. That might be about to change, however, if the Supreme Court takes up one of several cases challenging such searches. Professor Orin Kerr, of the University of California, Berkeley, School of Law, joins the show to discuss the interplay between the Fourth Amendment and the border, the Court’s evolving views on smart-device searches, and what might happen if any or all of these cases is taken up.

Named in honor of her wonderful essay in The Atlantic, “The Supply of Disinformation Will Soon Be Infinite,” this episode is a wide-ranging discussion with Renée DiResta, the technical research manager of Stanford Internet Observatory. Corbin and Berin pick Renée’s brain about the latest trends in misinformation, social media’s role in the “Stop the Steal” movement, the rise of online influencers, how to increase information literacy, and more. Other pieces of Renée’s mentioned or discussed in the show include “Mediating Consent,” “How to Stop Misinformation Before It Gets Shared,” “The Misinformation Campaign Was Distinctly One-Sided,” and “The Anti-Vaccine Influencers Who Are Merely Asking Questions.”

Thanks in part to outreach by its mayor, Francis Suarez, Miami is becoming a tech hotspot. Matt Haggman, an executive at the Miami-Dade Beacon Council, joins the show to discuss what’s drawing tech entrepreneurs to Miami, as well as what social, political, and environmental challenges could stand in the way of Miami becoming a new Silicon Valley.

Last week, Facebook’s new Oversight Board issued a much-discussed ruling on the platform’s suspension of Donald Trump. Two of the Board’s members, Ronaldo Lemos and John Samples, join Corbin and Berin for a wide-ranging discussion on the Trump decision, the Board, and content moderation.

“America is built on a tilt,” runs the apocryphal Mark Twain quote, “and everything loose slides to California.” So it might be said of net neutrality. The court fight over California’s new net neutrality law is only the latest episode in a long-running battle. TechFreedom’s James Dunstan and Corbin Barthold discuss what got us here (net neutrality ping pong at the FCC), where we are (a state trying to regulate an inherently interstate network), and where we need to go (a federal law that finally puts the debate to rest).  For more, see TechFreedom’s amicus brief in the California net neutrality case. (And if you’re wondering where Corbin got the concept of “kludgeocracy,” check out political scientist Steven Teles’s 2013 article, Kludgeocracy in America.)

Few public policies are more misunderstood than the Fairness Doctrine that briefly governed American broadcast media. If you think we need a “new Fairness Doctrine” for the Internet, chances are you’re not clear on what the old version was. Paul Matzko, editor for technology and innovation at Libertarianism.org, joins the show to discuss the history of the Fairness Doctrine, why it failed, and why making a new one would be a terrible idea. For more, see Paul’s book, The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement.

Data privacy is a complex and dynamic policy field. Lydia de la Torre, an inaugural board member of the new California Privacy Protection Agency, and Alan Friel, a partner at Squire Patton Boggs, join the show to help make some sense of it. They discuss the history of privacy policy, the growing influence of European privacy principles, and the new privacy laws we are seeing, or can expect, at the state and federal levels here in the United States.

Florida is poised to enact a law limiting social media websites’ ability to ban or moderate users. TechFreedom's Berin Szóka and Corbin Barthold discuss whether the bill is constitutional, and whether it would really protect speech (spoiler alert: no and no). For more, see their essay on the bill in Lawfare, a TechFreedom paper on Section 230 and the First Amendment, and a previous podcast episode on efforts to apply the Fairness Doctrine to the Internet.  If you’ve already heard us explain why the First Amendment protects content moderation and just want to hear why the Florida law’s special protections for political candidates are also unconstitutional, skip forward to 23:55. And here’s the 1979 Supreme Court decision in Midwest Video II explaining how, in 1934, Congress rejected proposals to require broadcasters to “turn over their microphones to persons wishing to speak.”

What can social-media platforms do to address growing concerns about extremism on their sites? Research suggests that YouTube, for one, has made great strides in driving viewers of radical messages toward more mainstream content. As new forms of misinformation arise, YouTube has succeeded in quickly adjusting its algorithmic recommendations. Dr. Anna Zaitsev is a postdoctoral scholar at the UC Berkeley School of Information, and the co-author of the paper “Algorithmic extremism: Examining YouTube’s rabbit hole of radicalization.” She joins the show to discuss her research on YouTube’s recommendation system, and what it takes to spot, block, and demote ever-evolving extremist content.