On October 23, 2019, Fordham Law School hosted a packed room of students to hear University of California, Berkeley Law Professor Pam Samuelson, the Distinguished Bacon-Kilkenny Visiting Professor of Law at Fordham, talk about “Challenges to Civil Liberties in Cyberspace.” Professor Olivier Sylvain moderated the discussion in which Professor Samuelson explored a wide range of information law issues, including the evolution of digital copyright law, privacy issues, and the First Amendment.
Professor Samuelson is an award-winning and esteemed pioneer in digital copyright law, intellectual property, cyberlaw, and information policy. Professor Sylvain writes about information and communications law and policy, and he has published extensively on current controversies in communications policy, online intermediary liability, privacy, and copyright.
Professor Samuelson discussed a number of complex issues, including legal questions that have emerged out of the growth of applications for user-generated content like Instagram and streaming services like Spotify. Samuelson suggested there is a “plasticity” around digital content today that raises a range of different legal issues depending on how content is created and circulated.
She also noted that copyright law often raises fundamental civil liberties issues. “For many, it’s not obvious, but I believe it is a civil liberty issue that creators have the right to enforce their property rights,” she told the audience.
She also gave several examples of how copyright’s fair use doctrine protects freedom of expression interests of follow-on creators as well. In addition, she discussed several cases she has worked on, such as the decade-long software copyright case between tech giants Google vs. Oracle, which has been very controversial in recent years. (A couple months ago, the Board of Directors of the Electronic Frontier Foundation, one of the leading cyber civil liberties advocacy groups in the country, appointed Professor Samuelson to be its Chair.)
Both professors also spoke about privacy and data protection. The subject is particularly timely given recent congressional hearings involving Facebook and other social media companies.
Professors Samuelson and Sylvain noted the major differences between the U.S. and the European Union’s approach to privacy protections. To date, Professor Samuelson explained, the U.S. still has no comprehensive federal privacy laws on the books. This is in stark contrast to the EU, which passed the General Data Protection Regulation (GDPR) in 2018 in order to give individuals in the EU more control over their personal data and regulate the transfer of data outside of the EU. Europe’s distinct experience with totalitarian and fascist government in the twentieth century does much to explain their approach.
Professor Sylvain offered that the U.S., too, has had a long history of repressive, antiliberal policies, particularly as it regards racial minorities.
“The U.S. also has a relatively recent and long tradition of systematic privacy invasion,” said Sylvain. Unlike Europe, however, “laws here were in the service of racial subordination through slavery, Jim Crow, and segregation. Civil rights groups like the NAACP and the ACLU brought free speech and freedom of association cases on behalf of activists who had been surveilled by the Department of Justice, as well as state and local police,” Sylvain said.
This history, he explained, “has not done enough, however, to motivate U.S. policymakers to enact anything resembling the GDPR, and that is too bad.”