Legal Tidbit:
On July 19, 1848, nearly 300 women gathered at the Wesleyan Chapel in Seneca Falls, New York, for what would be the first women's rights convention in American history. On the following day, the Declaration of Sentiments was signed by some 100 attendees. Among the 12 resolutions called for in the declaration was the right to vote. It would be another 72 years until the 19th Amendment was passed granting women the right to vote.
This week:
- Is TikTok a gatekeeper or an newcomer?
- What AI phones mean for data privacy
- President Biden's SCOTUS plan
🤳🏼 SOCIAL MEDIA
The EU Overrules TikTok
Sorry, TikTok, but you have to play by our rules. So said a European Union court to the Chinese social media company this week.
The ruling came after TikTok challenged its classification under the bloc's Digital Markets Act (DMA), which says the social media behemoth is an online "gatekeeper" with the likes of Google, Meta, and Apple, and has to abide by extra regulations.
As EuroNews notes, TikTok argued that its classification “risks undermining the DMA's own stated goal by protecting actual gatekeepers from newer competitors like TikTok.” The EU judges didn't buy the argument though, saying that, since 2018, the company has “succeeded in increasing its number of users very rapidly and exponentially” and that it had “rapidly consolidated its position, and even strengthened that position over the following years," writes the AP.
Under the DMA, TikTok and others, are obligated to increase competition in the digital marketplace or face fines up to 20% of global revenue, and even a breakup of the company.
“The most impactful online companies will now have to play by our EU rules,” Thierry Breton, European Commissioner in charge of digital policy, wrote on X. “DMA means more choice for consumers. Fewer obstacles for smaller competitors. Opening the gates to the Internet.”
Responding to the court's decision, a spokesperson for TikTok stated that "We are disappointed with this decision. TikTok is a challenger platform that provides important competition to incumbent players. While we will now evaluate next steps, we already took measures to comply with the relevant obligations of the DMA ahead of last March's deadline."
The ruling may be appealed to the EU's Court of Justice.
Addictive Design
In February, the EU opened an investigation into what it called TikTok's use of "addictive design," reports the New York Times. The European Commission alleges the design is in violation of the Digital Services Act (DSA) "in areas linked to the protection of minors, advertising transparency, data access for researchers, as well as the risk management of addictive design and harmful content."
As the press release states, the ByteDance-owned social media platform allegedly failed to counter "actual or foreseeable negative effects stemming from the design of TikTok's system, including algorithmic systems, that may stimulate behavioural addictions and/ or create so-called ‘rabbit hole effects'. Such assessment is required to counter potential risks for the exercise of the fundamental right to the person's physical and mental well-being, the respect of the rights of the child as well as its impact on radicalisation processes. Furthermore, the mitigation measures in place in this respect, notably age verification tools used by TikTok to prevent access by minors to inappropriate content, may not be reasonable, proportionate and effective."
Verdict
With the United States beginning the process of banning TikTok, and now the EU's case against the Chinese company, the social media behemoth will need to increasingly focus on litigation and compliance measures around the globe. Luckily for TikTok, its competitors seems to be facing a similar scenario.
🔒 DATA PRIVACY
Unlocking Privacy Concerns
How will the rise of AI across the internet, but especially on our phones, affect data privacy? That's the question posed in a recent piece by the New York Times.
As the piece details: "In this new paradigm, your Windows computer will take a screenshot of everything you do every few seconds. An iPhone will stitch together information across many apps you use. And an Android phone can listen to a call in real time to alert you to a scam."
But all these new features require one thing—constant access to all your private data.
"The default should be that our data is not collected unless we affirmatively ask for it to be collected," Katharine Miller of Stanford's Institute for Human-Centered Artificial Intelligence recently wrote. "There have been a few movements and tech solutions in that direction." To that, she points out the California Privacy Protection Act (CPPA) and Apple's App Tracking Transparency (ATT) tool.
The most pressing question regarding private data—especially the sensitive photos/videos, text messages, and other personal data—is whether the it will go to the cloud, and who will have access to it.
"Apple’s commitment to purging user data from its servers sets it apart from other companies that hold on to data," says the New Yorkt Times. "But Apple has been unclear about which new Siri requests could be sent to the company’s servers, said Matthew Green, a security researcher and an associate professor of computer science at Johns Hopkins University, who was briefed by Apple on its new technology. Anything that leaves your device is inherently less secure, he said."
Microsoft has been less clear about how its AI monitoring of your Windows activity will be kept secure. Push-back to this has caused the rollout of the Recall feature to be delayed.
As for Google, Suzanne Frey, who oversees trust and privacy for the tech giant, told the Times, "our privacy-protecting approach applies to our A.I. features, no matter if they are powered on-device or in the cloud."
The comment didn't go over so well for Green: "I don’t like the idea that my very personal photos and very personal searches are going out to a cloud that isn’t under my control."
Verdict
Not only is AI itself uncharted waters, but every new application of the technology brings up new questions about data, IP, and more. By bringing AI tools to users' phones, the tech giants will be dealing with ever more intimate privacy concerns by the public.
🔰CREDIBILITY
Rethinking SCOTUS
The Supreme Court of the United States has a bit of a credibility problem. A June 2024 poll found that 7 in 10 Americans believe the nation's highest court puts ideology above impartiality.
Now, President Biden is looking at a potential solution which could remake the court.
"I’ve been working with constitutional scholars for the last three months, and I need some help," Biden said on a call to the Congressional Progressive Caucus, reports the Washington Post. As he described to the group, his proposal for the Supreme Court would include term limits and an enforceable ethics code—two things the 235 year old institution has never faced. The caveat, however, is that Biden's plan would require congressional approval, and that seems unlikely.
In October, Democratic Senator Sheldon Whitehouse introduced a bill that would limit Supreme Court appointments to 18-year terms. His bill was co-sponsored by eight other Democratic senators, but have yet to leave the Judiciary Committee or even be voted on.
But Harvard Law professor and Constitutional Law scholar Laurence Tribe argued in an op-ed that SCOTUS reform "needn't take long." As he argued:
When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia state board of education v Barnette.
As Bloomberg notes, Biden already created a commission to study SCOTUS reform early in his term. The commission submitted a nearly 300-page report on their finds, but Biden did not act on it at the time.
Ethical Concerns
Concerns over the impartiality of the Supreme Court were kicked into high gear when ProPublica published a bombshell report in April 2023 detailing how Justice Clarence Thomas accepted a number of luxury gifts and travel accomodations from billionaire, conservative donor Harlan Crow. Thomas failed to disclose these gifts over the last several years, and did not recuse himself from any case connected to Crow.
In May, [the New York Times published](https://www.nytimes.com/2024/05/16/us/justice-alito-upside-down-flag.html#:~:text=An upside-down flag%2C adopted,was considering an election case.) its own reporting on a "Stop The Steal" flag displayed Justice Samuel Alito's house. In a follow-up report, it was exposed that a flag popular among Christian Nationalists was flying at the Alitos' beach property in New Jersey. Alito has also failed to recuse himself from cases involving the Stop The Steal movement, and claimed both flags were flown by his wife, not him.
Verdict
The validity of the Supreme Court rests on its reputation. Clearly, the last few years have seriously undermined the view both the American public and several political leaders have of the court. Biden's plan to reform the court may be a long shot, but term limits and an enforceable code of ethics seems like the most basic of standards.
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