In the Press
Tuesday, July 5, 2022A Growing Movement Against Illegal War The Washington Post
Thursday, June 30, 2022Why Liberal Justices Need to Start Thinking Like Conservatives — A Commentary by Akhil Amar ’84 Time
Thursday, June 30, 2022Abortion Ruling by Supreme Court Sparks Closer Scrutiny of Substantive Due Process ABA Journal
Monday, May 16, 2022
Start-up Within a Clinic: the Tech Accountability & Competition Project at MFIA
Among the work of the Tech Accountability & Competition is to address content moderation and hate speech on social media, social media addiction among children and teenagers, and facial recognition and police surveillance.
Since Fall 2021, the Media Freedom and Information Access (MFIA) Clinic has hosted an experiment in clinical pedagogy. Bringing the energy of an independent advocacy organization to the educational setting of a law school clinic, MFIA’s Tech Accountability & Competition (TAC) project is dedicated to reducing the harms caused by the excessive use of power in today’s digital marketplaces.
The project began when eight first-year law students sensed an opportunity to extend the Law School’s work relating to technology. Seeking to start a clinical project to address issues around digital technology, they approached Knight Professor of Constitutional Law and the First Amendment Jack Balkin, the director of the Information Society Project, who approved the project and found it a home within the MFIA Clinic.
The students recruited as their supervisor attorney David Dinielli, who is a former partner at Munger, Tolles, & Olson, LLP, former Deputy Legal Director at the Southern Poverty Law Center, and a veteran of the DOJ’s Antitrust Division. Since January 2020, Dinielli has been a collaborator and co-author with Fiona Scott Morton, Theodore Nierenberg Professor of Economics at the Yale University School of Management, a world-renowned economist whose work for the past several years has focused on understanding and proposing solutions to competition-related problems in digital markets.
Now in its second semester, the project has begun to address some of the most pressing concerns caused by contemporary digital life. These problems include content moderation and hate speech on social media, social media addiction among children and teenagers, and facial recognition and police surveillance.
As Dinielli describes it, the project is “committed to bringing issues at the intersection of new technologies, market power, and lack of oversight within the ambit of the law so they can be monitored, regulated, remediated, prevented, and punished.”
Taking a Proactive Stance
Because these problems are urgent and unfolding in real time, the project’s stance is proactive. Often, rather than waiting for clients to approach the project, TAC tries to anticipate new issues and actively searches for partners, including advocacy groups and plaintiff-side law firms. And because the matters it addresses are so varied, the project is open to using all available legal tools, including amicus briefs, whitepapers, legislative advocacy, administrative filings, and litigation.
“Our students are building the ability to think like first-movers in solving some of the most difficult problems that society faces,” says Dinielli. “We have to think broadly about the kinds of problems that could arise from technology and figure out what the connections are to ongoing cases or possible legislation, then jump in where we can be most effective.”
In the 2021 case Muslim Advocates v. Facebook, the project filed an amicus brief on behalf of Consumer Reports and other consumer groups, and in conjunction with the Washington, D.C., Attorney General. The brief rebutted Facebook’s claim that consumer protection law should never apply to its relationship with users because it doesn’t charge them a fee. Social media platforms like Facebook provide services in exchange for their users’ valuable time, attention and data. As such, TAC’s amicus brief argued that the tech giant’s zero cash price service is not truly free and that social media companies’ relationships with their users should be regulated by consumer protection law.
Prompted by an ongoing case against location data broker Bitsmedia, TAC students are currently producing a law review article considering how personal data can be protected by trade secrets law, a doctrine usually used by corporations to protect commercially valuable information. Muslim Pro, a widely used prayer app, sold its users’ location histories to location data brokers, and this sensitive information ultimately made its way to defence contractors and, allegedly, the U.S. military. The TAC paper argues that an individual’s location history can be, in certain circumstances, a trade secret belonging to that individual. Accordingly, when a company misappropriates a user’s location history, the court should order the defendant to pay damages under trade secret law, and also should consider additional equitable remedies that take account of, and seek to repair, the broken trust and betrayal of shared values of what constitutes fair dealing, which were some of the original concerns of what has become modern trade secret law.
The project has also assisted in drafting a bill, currently making its way through the California state legislature, that imposes a duty on social media companies not to addict children to their technologies and has produced a whitepaper on how children’s privacy can be better protected against police use of facial recognition under existing federal law.
These are enormous issues in the realm of technology and law for which no clear solutions yet exist, according to Dinielli. He likens the situation to the beginning of the movement against Big Tobacco.
“It is an extreme version of David and Goliath, and people have to make decisions about how they have to proceed,” Dinielli said. “We are those people.”
Charting a New Course
Although TAC was partially inspired by a handful of tech and cyberlaw clinics already in existence around the country, there was no roadmap for much of the tech accountability work TAC has done so far.
“We are an exploratory group,” Dinielli said.
Dinielli describes the project as closer to a start-up or an independent not-for-profit advocacy organization than a traditional clinic.
“When you sign up for the TAC Project, you don’t know yet exactly what you’ll be doing, and part of the job is to figure that out,” he said.
Students have been instrumental in shaping the project. Operating by consensus, and with Dinielli’s support and mentorship, they have collectively come up with methods for selecting projects and partners, distributing work, and the other business of running a clinic.
“We have a lot of conversation about our ethics, especially when selecting partners to work with,” said Abby Lemert ’23, one of the students who helped found the project. “We talk about how much our selection methods should be hard and fast rules, how flexible they should be in each case, and how much should they depend on the current will of the students versus the instructors making final decisions.”
Along the way, the project has brought together a close-knit community of students committed to tech law.
“I’ve enjoyed the project not only as an opportunity to do great work but also as an opportunity to build something with other students who are interested in the same thing as I am,” said John Bowers ’23, another of the project’s cofounders.
As part of the Media Freedom & Information Access Clinic at Yale Law School, the TAC Project aims to promote and enforce comprehensive legal regimes that require technology companies, digital platforms, and other public and private actors exerting power in the digital space to reduce harms arising from their business models and practices and respect the rights of all people affected by their products and services.
The Media Freedom and Information Access Clinic is dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.