Author: deansr

Kaylee Yang

Background

You open your phone to check the results of last night’s basketball game. Open Safari. Tap the address bar. Type in “March Madness results”. A custom widget appears. As you get ready for your day, you ask Siri for the weather. She relays what Google told her: sunny with showers in the afternoon. Later that day, holed up due to the rain, you decide to do some online shopping for your friend’s birthday. You look up “handcrafted wooden jewelry” and the top results you get are ads from different jewelers with eye-catching images. You browse them, but none seem to fit your friend’s style so you give up for the day. As you wind down, you ask your Google Home Assistant for a honey substitute to put in your tea. She responds that a teaspoon of maple syrup should do the trick. You finish making your tea and head to bed.

What started out as one person’s research project in 1996 has become a $1.37 trillion tech behemoth.^[1] Taking advantage of loose regulations and the public’s initial support, Google has managed to grow relatively unchecked over the past two decades. But recently, Google’s unmatched success has left critics and legal experts suspicious of its potentially monopolistic business practices.

In recent legal challenges, tech leaders have been facing public scrutiny over their large influence in the market and on the lives of consumers. After a flurry of activity in the last quarter of 2020, Google faced three antitrust lawsuits from state attorney general offices nationwide and from the Department of Justice (DOJ).^[2] Additionally, lawsuits attacking other parts of Google’s extensive business model have since been filed, including another antitrust lawsuit filed by the DOJ in January 2023.^[3] While it’s hard to tell which of these cases, if any, could actually rein the company in, these lawsuits—especially the one over Google’s monopolization of search and search advertising—could have a visible effect for end consumers and wide-ranging implications for other pending cases.

In the complaint filed on October 20, 2020, the DOJ and a coalition of states allege that Google violated Section 2 of the Sherman Antitrust Act through its practices in general search services, search advertising, and general search text advertising markets.^[4] In the United States, there are only four general search providers, or “one-stop shops” where users can search the web and get results for a variety of things. These four providers are Google, Bing, DuckDuckGo, and Yahoo!, with the latter two buying most of their search results from Bing.^[5] Google is by far the leader in this market, with over 88% of the market share.^[6] With the most queries going through its search services, Google is able to sell search query data to advertisers who compete to have their ads displayed at the top of search results when certain keywords are entered. The DOJ also accuses Google of arranging exclusionary agreements with mobile phone companies, wireless carriers, and browser companies to set Google’s products as defaults—practices that increase the company’s search access points.^[7] These agreements give Google a huge advantage in reaching consumers and have violated competition law by decreasing the room for innovation from smaller companies, according to the complaint.^[8]

Sherman Antitrust Act + Pertinent Precedent Cases

Section 2 of the Sherman Antitrust Law is vague; it simply states that it is unlawful for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations . . . .“^[9] Nowhere in the act does it define what a monopoly is or indicate what actions are banned under the law. The drafters’ hazy wording has enabled the law to remain applicable to patterns of anti-competitive behavior today.

Passed by Congress in 1890, the Sherman Antitrust Act bans trusts, monopolies, and cartels. It is designed to protect consumers against high prices and low-quality products by promoting competition.^[10] The first targets of the act were robber barons from the industrial age and the tactics they used, which included horizontal integration, vertical integration, and interlocking directorates.^[11] Yet when examining some of the most well-known antitrust cases, we see that courts are constantly battling with the definition of a monopoly and how to effectively enforce a ruling.

The idea that a monopoly increases industry efficiency appears in Standard Oil Company of New Jersey v. United States.^[12] In his testimony, John D. Rockefeller claimed that prior to Standard Oil dominating the industry, prices were volatile and inefficiency was rampant.^[13] Through his control of the majority of the nation’s refineries, Rockefeller set a fixed price and negotiated deals with railroad companies that increased shipping efficiency. Despite these arguments, the US government ultimately won the case and forced Standard Oil to break up into regional companies.^[14] After the breakup, the regional companies still limited their competition with one another and cooperated to keep oil prices fixed.^[15]

Similar to the Standard Oil case, United States v. AT&T in 1981 saw the breakup of the telecom giant AT&T along regional lines into smaller Baby Bell companies.^[16] Arguments made during the AT&T case are being recycled in Big Tech cases today. AT&T drew support from Commerce Secretary Malcolm Baldrige and Defense Secretary Caspar Weinberger, who called for the DOJ to drop the case because AT&T’s communications network was “too important to the national security to be subjected to antitrust prosecution”.^[17] Facebook’s CEO, Mark Zuckerberg, echoed this argument in the Facebook antitrust case recently by claiming that Facebook’s dominance is necessary to compete with China.^[18]

The AT&T case also brought up the concern of what to do after breaking up a company. After the Baby Bells were created, they quickly became regional monopolies, once again controlling the telecom and phone industries.^[19] It wasn’t until the Telecommunications Act of 1996 was passed that smaller companies had an opportunity to compete with the Baby Bells.^[20] There’s no way to realistically “split” Google into smaller companies—splitting Google search along regional lines would further fracture online space in complicated ways. Additionally, the DOJ has hinted at forcing Google to sell some of its properties, like its browser Chrome or its mobile phone operating system Android.^[21] Breaking off these “arms” of Google could backfire by turning them into independent monopolies, or by transferring Google’s current monopolistic power to one of their competitors. Another complication is the inefficiency of having many companies build up their search infrastructure to match Google’s. The more likely option would be to have Google license their infrastructure to competitors at fair rates, similar to what the Telecommunications Act of 1996 made the Baby Bells do. ^[22]

Perhaps the most relevant antitrust case that shares key details with the fact pattern of the Google case is United States v. Microsoft in 2001.^[23] Microsoft was accused of establishing a monopoly in the personal computer software market by making it difficult for consumers to uninstall its web browser, Internet Explorer. By making Internet Explorer a part of its dominant Windows operating system and forcing browser exclusivity with Internet service providers, Microsoft forced out its competitor, Netscape Navigator.^[24] The court ruled that this practice was unfair and that better products and innovation were being suppressed. In the Google case, the DOJ attacks the exclusionary agreements that Google has with companies like Apple to set its search engine as the default on Safari browsers. Additionally, Google requires developers who use its Android operating systems in their phones to pre-download a bundle of Google applications—precisely what Microsoft did when tying Internet Explorer to Windows.

And that’s why this particular lawsuit against Google is likely to have such a big impact. The government won in 2001 and is hoping to mirror that strategy to win again in 2023. But even though Microsoft lost the case, they were able to overturn the remedy to be broken up.^[25] Past cases like US v. Microsoft show that in order to really stop the Google monopoly, the game does not stop after a verdict is reached.

Analysis of the Google Response

Google maintains that they have done nothing wrong. Earlier this year, the courts unsealed Google’s motion for summary judgment. In it, Google refutes the DOJ’s claims and argues there’s not enough evidence to be in violation of the Sherman Antitrust Act.^[26]

In their response, Google sorts the exclusionary agreements the DOJ believes to be anticompetitive into two categories: 1) those with web browsers like Apple’s Safari or Mozilla’s Firefox, and 2) those with manufacturers of Android mobile devices, like Samsung, and sellers of those devices, like Verizon. Addressing the first category, Google claims that third party search boxes only allow one search engine to be set as the default, so they were simply being competitive in a market that demands it. They believe that web browsers chose to enter into these agreements with them because Google had the best product; they argue that denying this choice would promote inferior products, causing everyone to lose out.^[27]

While this argument might appear sound on paper, it’s important to criticize why Google can argue that it has the best product. The key here is scale and the monetary benefits that come from it: by increasing the number of search access points throughout the years, Google has increased the extent of its search services, which in turn forces advertisers to market on Google platforms to reach more consumers. Google then takes the lucrative revenue generated from these advertisers and splits it with web browsers. It’s less that Apple or Mozilla are choosing to grant Google default status due to a better product, and more that they are financially dependent on Google. For example, 15-20% of Apple’s worldwide net income comes from the revenue that Google shares.^[28] If given the chance to compete, it is unlikely that Bing could produce such a big check due to its lack of scale compared to Google.

Additionally, Google mentions that Apple is free to promote rival search engines.^[29] The response mentions rivals advertising their search apps on Apple’s App Store and Apple giving users the option to switch search engines within Safari.^[30] But if competitors are truly so accessible, why would Google pay $15 billion this year to maintain their default status with Apple’s Safari? A report conducted by Mozilla shows how consumers are unlikely to ever change a default setting.^[31] It suggests that if users were given an opportunity to try alternatives, they tend to find suitable substitutes for the default. However, default settings prohibit users from making this first and most crucial choice.

As for the second category of exclusionary agreements, Google has tried to morph the facts of the case to be as dissimilar to the US v. Microsoft case as possible. Google requires manufacturers using an Android operating system to pre-install a suite of Google applications which includes several search points of access like Chrome,  Search, and the Play Store. Although Google claims that this is to ensure “compatibility, security, and quality requirements”, these apps are undeletable and are a textbook example of what the Microsoft case prohibited.^[32]

Implications for Big Tech, Competitors, and Consumers

With this case being compared to important past cases, it will likely set a significant precedent for our current era of tech regulation.^[33] After Facebook successfully defended a lawsuit by the FTC over its acquisition of WhatsApp and Instagram, antitrust advocates are still looking for a big win that would shift the momentum in favor of regulation.^[34]

As for Google’s competitors, a DOJ win is not a silver bullet. As mentioned previously, Google has achieved massive scale and has established a loyal, default customer base. However, some innovation might just come out of this market, win or lose.

In February, Microsoft Bing announced that it will be powering its search engine using the OpenAI model and incorporating the ChatGPT chatbot.^[35] As the first to announce such an innovation into a relatively stagnant market, Bing finally created a feature that could challenge Google. In a hasty response, Google announced the incorporation of its own chatbot, Bard, into its search. But when Bard produced an incorrect response during the announcement, Google stock dropped 7%, suggesting that Bing has an opening.^[36] A DOJ win would help promote this type of innovation, but regardless, Bing currently has a feature that Google has not figured out how to monopolize yet.

As for consumers, it’s hard to say how much of an impact a DOJ win would have on daily search patterns. The longevity of its search monopoly makes it hard to predict changes to the status quo. However, with Google’s market share of searches most likely decreasing in a DOJ win, advertisers might divert less money into Google search ads, thus changing the makeup of ad results that appear.

Conclusion

The antitrust lawsuit brought against Google in 2020 stands to have a large impact on the Big Tech scene. A twenty year game of acquisitions and exclusionary agreements is on the line for Google. An era-defining antitrust win is up for grabs for the government. But surrounded by messy precedent cases and unclear legal definitions, the true winner of the case is hard to predict. In the meantime, Google will continue to accompany us in our daily lives, as we drink our tea and look up the scores of games we wished we watched.

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^[1] “Alphabet (Google) (GOOG) – Market Capitalization.” CompaniesMarketCap.com – companies ranked by market capitalization. Accessed April 30, 2023. https://companiesmarketcap.com/alphabet-google/marketcap/.

^[2] Molla, Rani, and Adam Clark Estes. “Google’s Three Antitrust Cases, Briefly Explained.” Vox. Vox, December 16, 2020. https://www.vox.com/recode/2020/12/16/22179085/google-antitrust-monopoly-state-lawsuit-ad-tech-search-facebook.

^[3] “Justice Department Sues Google for Monopolizing Digital Advertising Technologies.” The United States Department of Justice, February 2, 2023. https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertising-technologies.

^[4] “Justice Department Sues Monopolist Google for Violating Antitrust Laws.” The United States Department of Justice, October 21, 2020. https://www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws.

^[5] “United States v. Google Complaint.” Accessed May 1, 2023. https://www.justice.gov/opa/press-release/file/1328941/download.

^[6] “United States v. Google Complaint.” 29.

^[7] “United States v. Google Complaint,” 4.

^[8] “United States v. Google Complaint,” 5.

^[9] “15 U.S. Code § 2 .” Legal Information Institute. Legal Information Institute. Accessed April 30, 2023. https://www.law.cornell.edu/uscode/text/15/2#.

^[10] “Sherman Anti-Trust Act (1890).” National Archives and Records Administration. National Archives and Records Administration. Accessed April 30, 2023. https://www.archives.gov/milestone-documents/sherman-anti-trust-act.

^[11] “Sherman Anti-Trust Act (1890).”

^[12] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911)

^[13] “Bria 16 2 b Rockefeller and the Standard Oil Monopoly.” Constitutional Rights Foundation. Accessed April 30, 2023. https://www.crf-usa.org/bill-of-rights-in-action/bria-16-2-b-rockefeller-and-the-standard-oil-monopoly.html.

^[14] “Standard Oil Co. of New Jersey v. United States (1911).” Legal Information Institute. Legal Information Institute. Accessed April 30, 2023. https://www.law.cornell.edu/wex/standard_oil_co._of_new_jersey_v._united_states_(1911).

^[15] “Bria 16 2 b Rockefeller and the Standard Oil Monopoly.”

^[16] “United States v. American Tel. & Tel.. Co., 524 F. Supp. 1336 (D.D.C. 1981).” Justia Law. Accessed April 30, 2023. https://law.justia.com/cases/federal/district-courts/FSupp/524/1336/1430246/.

^[17] Behr, Peter. “Justice Rests in AT&.” The Washington Post. WP Company, July 2, 1981. https://www.washingtonpost.com/archive/business/1981/07/02/justice-rests-in-at38/54cd7d11-81e1-4721-8f5b-f182a2db1a42/.

^[18] Bond, Shannon. “Mark Zuckerberg Offers a Choice: The Facebook Way or the China Way.” NPR. NPR, October 23, 2019. https://www.npr.org/2019/10/23/772075523/mark-zuckerberg-offers-a-choice-the-facebook-way-or-the-china-way.

^[19] Falcon, Ernesto. “What the AT&T Breakup Teaches Us About a Big Tech Breakup.” Electronic Frontier Foundation, March 1, 2021. https://www.eff.org/deeplinks/2021/02/what-att-breakup-teaches-us-about-big-tech-breakup.

^[20] “Telecommunications Act of 1996.” Federal Communications Commission. Accessed April 30, 2023. https://www.fcc.gov/general/telecommunications-act-1996.

^[21] Nylen, Leah. “Feds May Target Google’s Chrome Browser for Breakup.” POLITICO, 2020. https://www.politico.com/news/2020/10/10/feds-may-target-googles-chrome-browser-for-breakup-428468.

^[22] “Telecommunications Act of 1996.”

^[23] United States v. Microsoft 253 F.3d 34 (D.C. Cir. 2001)

^[24] “U.S. v. Microsoft: Court’s Findings of Fact.” The United States Department of Justice, July 26, 2018. https://www.justice.gov/atr/us-v-microsoft-courts-findings-fact.

^[25] Labaton, Stephen. “U.S. Appeals Court Overturns Microsoft Breakup Ruling.” The New York Times. The New York Times, June 28, 2001. https://www.nytimes.com/2001/06/28/technology/us-appeals-court-overturns-microsoft-breakup-ruling.html.

^[26] Docket Alarm, Inc. “United States v. Google Defendant’s Memorandum of Points and Authorities in Support of Its Motion for Summary Judgement.” Docket Alarm. Accessed April 30, 2023. https://www.docketalarm.com/cases/District_Of_Columbia_District_Court/1–20-cv-03010/UNITED_STATES_OF_AMERICA_et_al_v._GOOGLE_LLC/451/.

^[27] “United States v. Google Defendant’s Memorandum of Points and Authorities in Support of Its Motion for Summary Judgement.” 6.

^[28] “United States v. Google Complaint,” 37.

^[29] “United States v. Google Defendant’s Memorandum…” 16.

^[30] “United States v. Google Defendant’s Memorandum…” 17.

^[31] “FIVE WALLED GARDENS Why Browsers Are Essential to the Internet and How Operating Systems Are Holding Them Back.” Mozilla. Accessed May 1, 2023. https://research.mozilla.org/files/2022/10/Mozilla-Five-Walled-Gardens.pdf.

^[32] “United States v. Google Defendant’s Memorandum…” 24.

^[33] Miller, Sarah. “A US Antitrust Suit Might Break up Google. Good – It’s the Standard Oil of Our Day.” The Guardian. Guardian News and Media, October 21, 2020. https://www.theguardian.com/commentisfree/2020/oct/21/google-antitrust-monopoly-power-us-politics.

^[34] Durkee, Alison. “Facebook Wins Antitrust Lawsuits – at Least for Now.” Forbes. Forbes Magazine, June 28, 2021. https://www.forbes.com/sites/alisondurkee/2021/06/28/facebook-wins-antitrust-lawsuits—-at-least-for-now/?sh=268f558015be.

^[35] “Reinventing Search with a New AI-Powered Microsoft Bing and EDGE, Your Copilot for the Web.” The Official Microsoft Blog, February 22, 2023. https://blogs.microsoft.com/blog/2023/02/07/reinventing-search-with-a-new-ai-powered-microsoft-bing-and-edge-your-copilot-for-the-web/.

^[36] Ponciano, Jonathan. “Alphabet Stock Plunge Erases $100 Billion after New AI Chatbot Gives Wrong Answer in Ad.” Forbes. Forbes Magazine, February 9, 2023. https://www.forbes.com/sites/jonathanponciano/2023/02/08/alphabet-google-stock-plunge-erases-100-billion-after-new-ai-chatbot-gives-wrong-answer-in-ad/?sh=30d4191255ce.

Caroline Quirk

Background

From its nascent development in the 1990s to the introduction of a widely available app in 2018, deepfake technology has become both increasingly sophisticated and readily accessible to the general population.[1] Deepfake—a portmanteau of “deep learning” and “fake”—is a form of synthetic media in which artificial intelligence is utilized to create a digital copy of a person’s likeness or voice. Deepfake technology can be utilized in a myriad of ways: in the educational sphere to create interactive content, in the film industry to substitute the lead actor for their stunt double or to align the dubbing in a foreign language film, and in the retail sector to enhance a prospective buyer’s experience. However, despite its many beneficial uses, deepfake technology has also been applied with deleterious consequences including the disparagement of political foes, the creation of deepfake pornography, as well as fraudulent business schemes.

In fact, since this technology has become more widely available, 90-95% of deepfake videos are now nonconsensual pornographic videos and, of those videos, 90% target women—mostly underage.[2] In fact, one popular online streaming personality, known as QTCinderella, who streams video content on the website Twitch, was the subject of hundreds of unauthorized deepfake pornography videos; however, QTCinderella was advised that she would not be successful in taking legal action against the person or persons who had stolen her likeness due to lack of existing legislation.[3] Currently, the lack of regulation of deepfake technology is not only a threat to celebrities, but also to any person with an image of themselves posted on the internet, privately or publicly, and has the potential to wreak havoc on the personal and professional lives of many without repercussion.

In addition to creating synthetic videos, deepfakes are also capable of vocal mimicking. The CEO of a UK-based energy plant fell prey to a scam utilizing the auditory form of deepfake technology. Believing that the leader of his parent company requested via a phone call that he wire transfer €200,000 to Hungary, he did so; however, his boss’s German-accented voice actually belonged to a scammer using the vocal mimicking abilities of deepfake technologies.[4] Although the fraudulent nature was soon recognized, the company was unable to receive any compensation or bring the perpetrators to justice due to the difficulty in tracing the origins of deepfakes.

Deepfakes have also been increasingly used within the political sphere, including the dissemination of misinformation about political candidates and the release of false statements from world leaders. In 2018, a now-viral video showed a deepfake-generated President Obama uttering words that were not his own but were, in fact, intended to demonstrate the realistic nature of these manufactured images and voices.[5] Used in these ways, deepfakes may have the ability to potentially undermine elections, as well as create global conflict. Deepfake technology, with its rapid development, if left unregulated, has the potential to ruin lives, destroy businesses, and spread misinformation.

Current Legislation

No federal legislation currently exists to address the potential threats of deepfake technology within the United States. However, in December of 2019, Congress passed the National Defense Authorization Act (NDAA), which, in Section 5709, requires the Director of National Intelligence to report on the use of deepfakes by international governments, its ability to spread misinformation, and its potential impact on national security. Although this action by the government is promising in regulating the growing threat of deepfakes from sources outside the nation, it does not address the issues that deepfakes may cause within the United States.

Since its creation, only five states have passed legislation regarding emerging deepfake technology. In 2019, Texas passed S.B. 751[6] and California passed AB730,[7] both banning the use of deepfakes to influence upcoming elections. In the same year, California’s law AB602,[8] Georgia’s S.B. 337,[9] and Virginia’s SB 1736[10] were passed to prohibit the creation and dissemination of nonconsensual deepfake pornography. In 2020, New York passed law S6829A,[11] establishing the rights for legal action against the unlawful publication of deepfakes.[12] More recently, bills to regulate artificial intelligence (AI) have been proposed and enacted in several states in 2022; however, most states still lack legislation regarding AI in general and only the five aforementioned states have deepfake-specific legislation.

Conversely, the Chinese government has recently enacted strict regulations, called Deep Synthesis Provisions, which prohibit the creation of deepfakes without the consent of the user and require confirmation that the content was generated using AI.[13] Despite the widely held view that China does not respect people’s personal freedoms, it is currently the only country to impose a strict ban regarding the use of certain deepfakes.[14] However, a few other countries do offer some legal protection against the unlawful use of deepfake technology. For example, the general right of responsibility is enshrined under German Basic Law and grants individuals the right to their own image; despite not directly addressing the deepfake technology platform, this law essentially renders deepfakes of individuals without consent illegal in Germany.[15] The United Kingdom has also sought to protect individuals through amendments to the country’s Online Safety Bill, including specific bans on deepfakes used for nonconsensual pornography.[16] Just as many see the value of the legislation to limit and regulate deepfake technology, others voice concerns that proposed regulations would constitute a potential violation of a creator’s First Amendment rights.

Are deepfakes protected by the First Amendment?

The increasing sophistication and accessibility of creating deepfakes have allowed this technology to pose an increasing threat towards the integrity of elections and safety of millions of Americans; however, many argue that restrictions on its use would constitute an impingement on the creator’s freedom of speech and expression, and, therefore, a violation of the First Amendment. Given that deepfakes are technically forms of expression, it would be unconstitutional to ban all of them, but there are exceptions within the First Amendment in which certain speech is no longer protected by the Constitution. These exceptions include libel, written defamation, slander, spoken defamation, and profanity.[17] While not all deepfakes are used for these purposes, many would fall under these categories such as nonconsensual pornography videos. As these forms of deepfakes would not be protected, it would be completely legal to impose federal bans or restrictions on them.

The defense of the First Amendment for deepfakes can also be supported through copyright law. As deepfakes are often built on recycled, copyrighted content, the creation of deepfakes without permission may potentially be considered copyright infringement. While use of copyrighted content without permission is, in fact, copyright infringement, the fair use doctrine permits limited use of copyrighted materials without permission for certain works.[18] Under the Copyright Act of 1976 S107, fair use is determined through a four factor test:

1. Purpose and character of use
2. Nature of original work
3. Amount and substantiality of content borrowed
4. Effect of such use on the potential market[19]

As the purpose of deepfake creation is inherently different than that of original work, it clearly meets the first criterion. U.S. courts have also upheld through Campbell v. Acuff Rose[20] that content including a significant portion of copyrighted work would be considered fair use if the new work is transformative. In most cases, deepfakes may be considered transformative works, therefore their creators cannot be held liable for copyright infringement. In these cases, deepfakes being taken down based on copyright infringement would be a clear obstruction of free speech because they would be protected by fair use.

Finally, while the creator of a deepfake that is considered to be slander or libel is not protected by the First Amendment, the third party website that hosts this content cannot be held liable. Section 230 states that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[21] Although this rightfully prevents websites from being held responsible for the actions of its users, there is no way to prevent offensive deepfakes from being reposted on the same or other sites.

Is Defamation Law Enough?

Another argument against the creation of new legislation limiting deepfakes is that legal recourse for defamation caused by this technology already exists in the form of defamation law which imposes liability on those who create reputational damage through public and false statements.[22] However, defamation law in the United States is on a state-by-state basis and is considered a tort (civil offense), rather than a criminal offense. Defamation law also requires a distinct division between statements of fact or opinion in order to be used, as the falsehood must have been presented as truth in order to be considered libel or slander.[23] Defamation law often overlaps with false light law, which is a tort under the category of invasion of privacy and focuses on the spreading of malicious falsehoods about a certain person. False light law focuses on the emotional distress caused by the damage to reputation through public speech, rather than the actual damage to reputation.[24] Both could be used as defense against the dissemination of targeted deepfakes; however, they are also subject to interpretation given the necessity of the defamation being presented as fact rather than opinion and the subjectivity of what constitutes damage to reputation. Although defamation and false light laws may be able to provide legal recourse for the targets of these deepfakes, monetary compensation would not undo damage to reputation and may not adequately restore emotional well-being. Therefore, legislation is necessary in order to prevent new deepfakes from being created and disseminated with the power to ruin lives under the guise of the truth and to allow for criminal consequences for those who misuse the technology.

Conclusion

Rapidly evolving deepfake technology—with the ability to convincingly mimic voices and digitally alter videos in order to present falsehoods as fact—has already been used to create nonconsensual deepfake pornography, spread political misinformation, and extort businesses; without new government regulations, this technology will soon become undetectable and has the potential to create irreversible damage. Although this technology has many positive applications, such as creating immersive language experiences or enhancing a retail customer experience, its accessibility has allowed individuals to harness this technology for nefarious purposes.

Could legislation aimed at preventing the malicious use of this technology prevent its misuse while preserving its positive function in society? With the power to obscure the lines between fact and fiction, if left unchecked, deepfake technology could alter the political, economic and social climate of the United States drastically with consequences that are unfortunately all too real.

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[1] “The History of Deepfake Technology: How Did Deepfakes Start?,” Deepfake Now, last modified April 21, 2020,

accessed April 30, 2023, https://deepfakenow.com/history-deepfake-technology-how-deepfakes-started/.

[2] Karen Hao, “Deepfake Porn Is Ruining Women’s Lives. Now the Law May Finally Ban It.,” MIT Technology

Review, last modified February 12, 2021, accessed April 24, 2023,

https://www.technologyreview.com/2021/02/12/1018222/deepfake-revenge-porn-coming-ban/.

[3] Bianca Britton, “They appeared in deepfake porn videos without their consent. Few laws protect them.,” NBC

News, last modified February 14, 2023, accessed April 30, 2023,

https://www.nbcnews.com/tech/internet/deepfake-twitch-porn-atrioc-qtcinderella-maya-higa-pokimane-rcna69372.

[4] Meredith Somers, “Deepakes, Explained,” MIT Management Sloan School, last modified July 21, 2020, accessed

April 24, 2023, https://mitsloan.mit.edu/ideas-made-to-matter/deepfakes-explained.

[5] Kaylee Fagan, “A viral video that appeared to show Obama calling Trump a ‘dips—‘ shows a disturbing new trend

called ‘deepfakes,'” Insider, last modified April 17, 2018, accessed April 30, 2023,

https://www.businessinsider.com/obama-deepfake-video-insulting-trump-2018-4.

[6] S. 751, 2019 Leg. (Tex. Apr. 17, 2019). Accessed April 30, 2023.

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/SB00751F.pdf.

[7] A. 730, 2019 Leg. § 20010 (Cal. Oct. 3, 2019). Accessed April 30, 2023.

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB730.

[8] A. 602, 2021st Leg. (Cal. Sept. 28, 2021). Accessed April 30, 2023.

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB602.

[9] S. 337, 2019 Gen. Assem. (Ga.). Accessed April 30, 2023.

https://www.legis.ga.gov/api/legislation/document/20192020/194806.

[10] S. 1736, 2019 Gen. Assem. (Va. Mar. 7, 2019). Accessed April 30, 2023.

https://lis.virginia.gov/cgi-bin/legp604.exe?191+sum+SB1736.

[11] S. 6829A, 2021st Leg. (N.Y.). Accessed April 30, 2023. https://www.nysenate.gov/legislation/bills/2021/S6829.

[12] “Legislation Related to Artificial Intelligence,” National Conference of State Legislatures, last modified August

26, 2022, accessed April 24, 2023,

https://www.ncsl.org/technology-and-communication/legislation-related-to-artificial-intelligence.

[13] Asha Hemrajani, “China’s New Legislation on Deepfakes: Should the Rest of Asia Follow Suit?,” The Diplomat,

last modified March 8, 2023, accessed April 24, 2023,

https://thediplomat.com/2023/03/chinas-new-legislation-on-deepfakes-should-the-rest-of-asia-follow-suit/#:~:text=It

%20specifically%20prohibits%20the%20production,using%20artificial%20intelligence%20(AI).

[14] Laura Silver, Kat Delvin, and Christine Huang, “Large Majorities Say China Does Not Respect the Personal

Freedoms of Its People,” Pew Research Center, last modified June 30, 2021, accessed April 30, 2023,

https://www.pewresearch.org/global/2021/06/30/large-majorities-say-china-does-not-respect-the-personal-freedoms-

of-its-people/.

[15] Maureen Cohen, “Deepfakes and German Law,” Dayside Stories, last modified January 3, 2020, accessed April

30, 2023, https://mj-cohen.com/2020/01/03/deepfakes-and-german-law/.

[16] Hsu Tiffany, “As Deepfakes Flourish, Countries Struggle With Response,” The New York Times, last modified

January 22, 2023, accessed April 30, 2023,

https://www.nytimes.com/2023/01/22/business/media/deepfake-regulation-difficulty.html.

[17] Marc Jonathan Blitz, “Deepfakes and Other Non-Testimonial Falsehoods: When Is Belief Manipulation (Not) First Amendment Speech,” Yale Journal of Law & Technology 23 (Fall 2020): 214.

[18] Shannon Reid, “The Deepfake Dilemma: Reconciling Privacy and First Amendment Protections,” abstract,

University of Pennsylvania Journal of Constitutional Law, June 26, 2020, 214-223, accessed April 30, 2023.

[19] Akhil Satheesh, “Deepfakes and the Copyright Connection: Analysing the Adequacy of the Present Machinery,”

University of Richmond Journal of Law and Technology, last modified January 25, 2022, accessed April 30, 2023,

https://jolt.richmond.edu/2022/01/25/deepfakes-and-the-copyright-connection-analysing-the-adequacy-of-the-present-machinery/.

[20] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

[21] Abigail Loomis, “Deepfakes and American Law,” Davis Political Review, last modified April 20, 2022, accessed

April 24, 2023, https://www.davispoliticalreview.com/article/deepfakes-and-american-law.

[22] Lourdes Vasquez, “Recommendations for the Regulation of Deepfakes in the U.S.: Deepfake Laws Should

Protect Everyone Not Only Public Figures” (unpublished manuscript, 2021), 7.

[23] Lara Guest and Molly Reynolds, “A Short Take on Deepfakes,” TORYS, accessed April 24, 2023,

https://www.torys.com/Our%20Latest%20Thinking/Publications/2019/05/a-short-take-on-deepfakes/.

[24] “False Light,” Cornell Law School Legal Information Institute, last modified December 2022, accessed April 30,

2023,

https://www.law.cornell.edu/wex/false_light#:~:text=False%20light%20is%20one%20of,objectionable%20by%20th

e%20average%20person.

Beatrice Neilson

Congressional inaction on data privacy is leaving courts, corporations, and consumers in the dark, stranded and sacked with the responsibility of resolving some of the most complex problems of the digital age all on their own. Amid the chaos, social media companies collect vast amounts of user metadata for their algorithms,^[1] foreign nation-state adversaries prey on user data to meddle in federal elections,^[2] and law enforcement agencies blithely issue subpoena after subpoena, accessing mountains of sensitive civilian data with little more than a reasonable suspicion to back up their requests.^[3] On either side of any one of these conflicts lie a panoply of different competing interests, all looking to Congress for a solution, but to no avail.

The last major data privacy law passed by Congress was the Electronic Communications Privacy Act of 1986 (ECPA). Quite obviously, technology has come a long way in the near four-decades since the ECPA was signed into law, and — to their credit — Congress has amended the ECPA and its titles a handful of times since 1986. But in an age when a person’s cell phone may house their financial information, location data, emails, text messages, call logs, personal calendars, and even their sensitive health data, the need could not be greater for national data privacy standards that are current, workable, and clear. One area in which the lack of sound data privacy standards is particularly detrimental is the realm of Fourth and Fifth Amendment protections in criminal investigations and prosecutions.

For instance, 18 U.S.C. § 2703(d), part of the Stored Communications Act of 1986 (SCA), (Title II of the Electronic Communications Privacy Act of 1986 (ECPA)), empowers law enforcement entities to access virtually any electronic communications or customer data stored by internet service providers (ISPs) through a court order. They can obtain one of these so-called “2703(d) orders” if they are able to demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the…information sought, [is] relevant and material to an ongoing criminal investigation.”^[4] Given the fact that the SCA was last amended nearly three decades ago in 1994, section 2703(d) presents serious due process and privacy concerns in an age in which ISPs have access to user data that is extensive in quantity and extremely private in quality.

The Supreme Court has been notably reticent to weigh in on due process questions related to the SCA. The last major case to handle one of these questions was Carpenter v. United States (2018), in which the Court considered the constitutionality of the warrantless search and seizure of historic cell site location information (CSLI). CSLI can pinpoint an individual’s location within 50 square meters (about 530 square feet), and is triangulated and logged by ISPs whenever a user’s cell phone connects to a cell signal.^[5] This includes both passive connections — such as receiving a text message or phone call — and active connections — such as accessing the internet using cellular data or placing a call.^[6] ISPs store and analyze CSLI for business purposes, meaning they are records subject to disclosure under a 2703(d) order. In Carpenter v. United States (2018), the Federal Bureau of Investigation (FBI) identified the phone numbers of several suspects in a slew of armed robberies at RadioShack and T-Mobile stores around southeastern Michigan and northern Ohio in 2011. Federal prosecutors obtained court orders under section 2703(d) compelling a number of ISPs to disclose the suspects’ CSLI from inbound and outbound phone calls over a four-month period.^[7] Petitioner Timothy Carpenter was one such suspect; his ISPs — MetroPCS and Sprint — gave federal prosecutors nearly 13,000 data points of CSLI collected over the span of 127 days. After being charged with six counts of robbery and six counts of carrying a firearm during a federal crime of violence, Carpenter moved to suppress the CSLI in evidence, arguing the government violated the Fourth Amendment by seizing the CSLI without a warrant backed by probable cause. The District Court denied the motion and Carpenter was convicted on eleven of twelve counts and subsequently sentenced to nearly one hundred years in federal prison. The United States Court of Appeals for the Sixth Circuit affirmed his conviction,^[8] relying largely on the Fourth Amendment “third party doctrine” as outlined in Smith v. Maryland (1979).^[9]

The third party doctrine stipulates that information disclosed to a third party is not subject to Fourth Amendment protections, because individuals relinquish their expectation of privacy over information they voluntarily disclose to third parties. This reasoning arises from an earlier doctrine outlined in Katz v. United States (1967), which states that the Fourth Amendment is violated when a search encroaches on an individual’s “reasonable expectation of privacy.”^[10] In Smith v. Maryland (1979), the Court considered whether police violated the Fourth Amendment by warrantlessly installing a pen register at a telephone company to record the numbers dialing in and out of Petitioner Michael Lee Smith’s home. Applying the reasonable expectation of privacy test, the court determined “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland 442 U.S. 743, 744 (1979).^[11]

Before Carpenter, federal courts had largely construed the third party doctrine as a bright-line test: if the information is voluntarily conveyed to a third-party, it is not subject to Fourth Amendment protections. Full stop. But as the age of smartphones dawned, the Court needed to address whether the third party doctrine — befit for cases concerning such analog tools as pen registers — still applied in the digital age. Recognizing that “cell phone location information is detailed, encyclopedic, and effortlessly compiled,”^[12] the Court tweaked the third party doctrine, requiring that law enforcement obtain a warrant before seizing CSLI.

But as vital a case as Carpenter was in curbing undue encroachments on Fourth Amendment protections, it was not perfect. For one, Carpenter was not shy in defining its narrowness: “[o]ur decision today is a narrow one. We do not express a view on matters not before us…[and]…[w]e do not disturb the application of Smith and Miller.”^[13] In all fairness, given the possible implications for the Court’s entrenched case law surrounding the third party doctrine, the majority’s caution was understandable. But it remains glaringly obvious throughout the opinion that the decades-old foundations of the third party doctrine have begun to crack amid the advent of the digital age. For one, if CSLI is subject to Fourth Amendment protections because, inter alia, it is “detailed, encyclopedic, and effortlessly compiled,” why is a user’s debit or credit card purchase history not? Certainly, the Court has been clear in its position that bank records are unequivocally subject to third party doctrine,^[14] but in an age in which cash usage is at an all-time low,^[15] and digital wallet usage is on the rise,^[16] bank records are just one area among many where the digital age has made it virtually impossible not to disclose personal financial information to third parties. Surveys conducted at the Pew Research Center suggest an overwhelming majority of Americans believe that it is impossible to navigate daily life without having their data collected by private companies and/or the government.^[17] The same survey suggests that nearly 80% of Americans are concerned about the use of their data by private companies, and roughly 64% are concerned about government usage of private data.^[18] If Katz v. United States still means anything, and “the Fourth Amendment protects people, rather than places,”^[19] surely the Supreme Court should recognize that consumers have an expectation of privacy over their digital data — an expectation they believe companies and government entities are violating.

Furthermore, CSLI represents just one type of highly-sensitive information for which law enforcement entities can seek orders for disclosure under the SCA. Section 2703(d) empowers law enforcement to obtain virtually any electronic communications or ISP-held records, including customer names, addresses, call logs, internet protocol (IP) addresses, phone numbers, credit card numbers, and bank account information. Today, users store large quantities of highly-sensitive data on their cell phones, and ISPs possess more user data than ever.^[20] For example, Apple’s “Health” app, allows users to log their physical activity, medications, sleep data, and even menstrual cycles.^[21] Later this year, Apple plans to roll out a new “journaling” app, which will analyze user behavior, daily activity, user location, and even track which people users spend time with.^[22] At a certain point, either Congress or the courts must draw a line as to how readily accessible to law enforcement information of this sensitivity can reasonably be. And although the courts may be tasked with resolving these challenges in the interim, given the fact that the balancing of law enforcement and privacy interests is delicate, particular, and case-specific_,^[23] it is a balance best rectified through legislative remedies, as opposed to flexible, multi-factor judicial tests.

But even assuming that neither Congress nor the Supreme Court intends to abrogate the applicability of the third party doctrine to any digital data or sensitive user information information, pressing questions related to the interpretation of the SCA remain wide open. For instance, the SCA sets only two substantive limits on the issuance of 2703(d) orders, allowing courts to “quash or modify” orders that “are unusually voluminous in nature” or pose “an undue burden on…provider[s].” Congress offers no indication to courts as to the intended application of these vague guidelines. To date, the Supreme Court has not construed the language of the unusually voluminous or undue burden clauses of section 2703(d), leaving open the possibility for numerous hypothetical legal dilemmas to arise.

One such dilemma relates to the question of encrypted data. Between 2008 and 2019, the Department of Justice has submitted over sixty applications before federal judges and magistrates seeking to compel ISPs to write software in the aid of decrypting sensitive user data.^[24] Because many ISPs encrypt user data for privacy purposes, law enforcement is occasionally unable to decrypt data in their possession using the tools at their disposal. In other words, the question of decryption is as much a Fifth Amendment question as it is a Fourth Amendment question. Government entities may lawfully possess a cell phone seized during a warranted search, but lack the resources to unlock it. And as the Supreme Court ruled in Riley v. California, “The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”^[25] The federal government has thus made it a practice to seek court orders compelling ISPs to write special software that bypasses security features or decrypts user data so that investigators can access it. This practice gave way to a public controversy in 2016, when Apple publicly fought a DOJ-sanctioned All Writs Act order compelling Apple to write software that would allow federal investigators to access the iPhone of San Bernardino terrorist attacker Syed Rizwan Farook.^[26] The heated legal battle was short lived, however, as the FBI secured a private contract to unlock the phone before litigation began. And whereas in the past, federal prosecutors typically sought to compel ISPs to aid in criminal investigations via the All Writs Act due to its broad allowances, the DOJ has since reassessed its strategy for compelling ISP compliance after a number of high-profile defeats in All Writs Act litigation.^[27] But regardless of whether federal prosecutors seek to compel user data decryption under the All Writs Act or the SCA, courts have yet to rule in any meaningful way on the limits of government power in compelling such action at all. Federal judges and magistrates still regularly greenlight applications by the Justice Department for decryption orders under the All Writs Act,^[28] and the courts have yet to determine whether the undue burden clause of section 2703(d) of the SCA precludes the issuance of decryption orders thereunder.

Basic principles of justiciability dictate that an ISP cannot assert the Fourth and Fifth Amendment rights of their customers in court, and few tools are at ISPs’ disposal to fight decryption orders — assuming, that is, that an ISP so chooses. Large-scale ISPs like Google and Apple work with federal investigators on a daily basis to aid in criminal investigations.^[29] They cannot then, for practical reasons, reasonably fight every warrant, 2703(d) order, subpoena, or decryption request. The Supreme Court continues to deny certiorari in data privacy cases,^[30] leaving lower courts to decide these convoluted cases with few nationwide guidelines or directives from the High Court. So, for the time being, customers’ hands are tied in securing the privacy of their own digital data. Until Congress or the Supreme Court acts, courts will continue to navigate the minefield of balancing the age-old competing interests of personal privacy and law enforcement. What is indisputable, however, is that no one interest in this balance is limitless;it is for this reason, firstly and foremostly, that clear and current national data privacy standards must be developed.

---

^[1]Dylan Curran, Are you ready? This is all the data Facebook and Google have on you, THE GUARDIAN (2018), https://www.theguardian.com/commentisfree/2018/mar/28/all-the-data-facebook-google-has-on-you-privacy (last visited Apr 2023).

^[2] Young Mie Kim, New Evidence Shows How Russia’s Election Interference Has Gotten More Brazen, BRENNAN CENTER FOR JUSTICE (2020), https://www.brennancenter.org/our-work/analysis-opinion/new-evidence-shows-how-russias-election-interference-has-gotten-more (last visited Apr 2023).

^[3] Jay Greene, Tech giants have to hand over your data when federal investigators ask. Here’s why., THE WASHINGTON POST (2021), https://www.washingtonpost.com/technology/2021/06/15/faq-data-subpoena-investigation/ (last visited Apr 2023).

^[4] 18 U.S.C. § 2703(d) (2018).

^[5] Washington Journal of Law, Technology & Arts, Cellular Privacy: Supreme Court Rules to Protect Historical Cellphone Location Data, WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS (2019), https://wjlta.com/2019/02/18/cellular-privacy-supreme-court-rules-to-protect-historical-cellphone-location-data/ (last visited Mar 23, 2023).

^[6] Id.

^[7] Carpenter v. United States 138 S. Ct. 2206-2208 (2018).

^[8] Id at 2209.

^[9] See: Smith v. Maryland 442 U.S. 735, 741 (1979).

^[10] Katz v. United States 389 U.S. 360, 361 (HARLAN, J., concurring).

^[11] See also: United States v. Miller 425 U.S. 435 (1976).

^[12]  Carpenter v. United States 138 S. Ct. 2216 (2018).

^[13]  Id at 2223, 2224.

^[14] See, e.g.: United States v. Miller, supra

^[15] Michelle Faverio, More Americans are joining the “cashless” economy, PEW RESEARCH CENTER (2022), https://www.pewresearch.org/short-reads/2022/10/05/more-americans-are-joining-the-cashless-economy/ (last visited Apr 2023).

^[16] David Chang, More Americans Are Using Digital Wallets Than Ever. Which One Should You Choose Right Now?, THE MOTLEY FOOL (2022), https://www.fool.com/the-ascent/personal-finance/articles/more-americans-are-using-digital-wallets-than-ever-which-one-should-you-choose-right-now/#:~:text=Since%20the%20start%20of%20COVID (last visited Apr 2023).

^[17] Brooke Auxier et al., Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over Their Personal Information, PEW RESEARCH CENTER (2019), https://www.pewresearch.org/internet/2019/11/15/americans-and-privacy-concerned-confused-and-feeling-lack-of-control-over-their-personal-information/ (last visited Apr 2023).

^[18] Greene, supra.

^[19] Katz v. United States 389 U.S. 347 (1967).

^[20] Ben Brody, Internet service providers have so much data on you, PROTOCOL, Oct. 25, 2021, https://www.protocol.com/policy/isp-ftc-data (last visited Apr 2023).

^[21] In the post-Dobbs landscape, menstrual cycle data may be a valuable tool for state and local prosecutors enforcing anti-abortion laws.

^[22] Aaron Tilley, WSJ News Exclusive | Apple Plans iPhone Journaling App in Expansion of Health Initiatives, THE WALL STREET JOURNAL, (2023), https://www.wsj.com/articles/apple-plans-iphone-journaling-app-in-expansion-of-health-initiatives-690b2c8b (last visited Apr 23, 2023).

^[23] In other words, the balance of interests may vary depending on the case. For example, a multinational corporation’s investment banking records may carry different privacy interests from an everyday user’s online banking account. In terms of a law enforcement interest, investigators may have more compelling grounds to seek a records disclosure order if the investigation relates to more serious criminal activity such as terrorism.

^[24] Jennifer Luo, Decoding Pandora’s Box: All Writs Act and Separation of Powers, HARVARD JOURNAL ON LEGISLATION 258-260 (2019), https://harvardjol.com/wp-content/uploads/sites/17/2019/05/HLL105_crop.pdf (last visited Apr 30, 2023).

^[25] Riley v. California 573 U.S. 373 (2014).

^[26]Arjun Kharpal, Apple vs FBI: All you need to know, CNBC (2016), https://www.cnbc.com/2016/03/29/apple-vs-fbi-all-you-need-to-know.html (last visited Apr 2023).

^[27] Kate Conger, Have we seen the last of the All Writs Act in the encryption fight?, TECHCRUNCH (2016), https://techcrunch.com/2016/04/25/have-we-seen-the-last-of-the-all-writs-act-in-the-encryption-fight/.

^[28] Lou, supra.

^[29] Greene, supra.

^[30] Sara Merken, U.S. Supreme Court nixes appeal over forced password disclosure, REUTERS, May 17, 2021, https://www.reuters.com/business/legal/us-supreme-court-nixes-appeal-over-forced-password-disclosure-2021-05-17/ (last visited Apr 2023).