There is an inherent contradiction in saying goodbye to a communications law class in 2019. There are precious few certainties given the multi-dimensional nature of the subject, but one feature we can identify with reasonable certainty is that there are few if any permanent goodbyes. Communications technologies make information frighteningly persistent. Even the right to be forgotten is not a right of erasure, but merely a right to remain lost among constantly searching algorithms. It’s hard not be found if someone is looking for you – it’s all in the precision of code.

So it is that all I can say with certainty is “see you later”, and a few other things. Those other things are:

1. Thank you;
2. You were a lot of fun; and
3. You were often brilliant, especially those of you willing to look deeply and fairly at the inherent challenges of technologies theoretically built to unite us that can equally serve to divide.

Though real world events have always visited communications law, the last few years have produced visitations that seem to be far  more like being possessed in demonic, or if you prefer, zombie-ish ways. Learning with you has either convinced me or further convinced me (as the case may be) that technology is indeed a neutral tool subject to human foibles, that politics are symptoms not causes, and that there are equal parts magic and striving in our creative imperative to be human.

So though there are many things to thank you for, one is certainly that I walk away (slightly) less confused rather than before. Hopefully all of you have found some good in the experience of the course, and perhaps even your own piece of clarity about how law, technology and communications might best intersect. Though never say forever, the questions and conundrums (with more to come) are likely to stay with for a very long time, and because there are few real good-byes anymore we might even see how the seeds we’ve sown together grow and evolve…

My you be healthy, happy and forever open and curious commlaw 2019. It was a distinct pleasure and honour to spend time with you.

Jon

By the time  end of term rolled around, everyone in our course surely was feeling a bit too familiar with our oft-repeated theme/query “To regulate or not to regulate?”. Lucky for us then that Mark Zuckerberg of Facebook has taken it upon himself to answer the question, and perhaps in an unexpected way at that. Here is the article in which he call for Facebook (and his competitors) to be regulated.

Lots of questions flow from this editorial, some of which were touched on in our final class. Two questions in particular deserve to be highlighted:

1. Why is Zuckerberg waiving a barely conditional white flag to regulation, including seemingly calling for government censorship of content? &
2. Why is he throwing his competitors under the same bus he is throwing himself under?

First, the counterpoint – set out by the President (and former General Counsel) of Microsoft, Brad Smith. In particular note how quickly Smith defends against something left out of Zuckerberg’s invitation to regulation, the proposal that big tech should be broken up on anti-trust grounds (most prominently identified with U.S. Presidential Candidate and former Harvard Law Professor, Senator Elizabeth Warren). Here is the article regarding Microsoft’s perspective…

But as raised in our final class, might Zuckerberg be trying to be too clever by half (some including me might add the word “again”)? The faux cleverness would be in the knowledge that regulation, generally speaking, has the impact of slowing down free market effects. If indeed Facebook’s business is failing faster than the Las Vegas Golden Knights with a five minute major penalty against them, then calling for regulation could be nothing more than a survival gambit. The following article by Mike Masnick at techdirt expressly calls out that scenario…

But ultimately what makes me doubt Zuckerberg and his motives (in addition to how he was characterized in the film The Social Network, which seems IMHO to have been vindicated and borne out by his actions at Facebook ad infinitem) is the following Ted Talk. It paints an extraordinarily disturbing picture of actions that appear to deserve legal consequences so beyond the issue of regulation that it makes one wonder if Zuckerberg is attempting to “plea-bargain” to regulation in the hopes of mitigating a way out of far more severe and more personal legal consequences?

There are a couple of fascinating postscripts to the TedTalk which seem to reinforce what appears to be FaceBook’s bad faith, and at the very least make one wonder about the sophistication and/or talent of their P.R. people.

The first is a tweet from Carole Cadwalladr and the video in it…

The second is an article from the Guardian offering additional insights including that a very short time after stepping off the stage Ms. Cadwalladr learned that Facebook had lodged a complaint and was demanding her script. Actually kind of funny because you’d think Facebook’s people had recorded the event and knew enough about technology to easily  generate a script, but apparently not, LOL….

Jon