RIIPL and Professor Ellen P. Goodman welcome leading scholars in technology law, journalism, information studies, sociology, urban studies, and architecture September 14-15, 2017 to a workshop on:

PUBLIC ACCESS TO DATA

The goal of the project is to improve understanding of how big data sets lead to algorithmic predictions, which can shape the provision of government and private services and the distribution of opportunities. The project will focus on access and transparency issues related to algorithmic learning.  Such algorithmic learning impacts government decisions around energy policy, educational policy, policing, transportation policy, smart cities deployment, employment, and many other areas. We will work collaboratively on research regarding such issues as:

*        Open records and FOIA as tools for algorithmic and data access
*        The production of information graphics to facilitate public understanding of resource allocation, political processes, and threat responses
*        Private capture of public information and public access to such data
*        Sustainability and environmental data access
*        Smart cities, private-public partnerships, and the risk of the “Uberization” of public data (meaning public entities trading control over data in return for private entity provision of public services)
*        Criminal justice data and the rights of criminal defendants and communities to access about criminal justice and policing decisions
*        The use of propaganda to obfuscate and impede access to information, and techniques to push back

By Andrew Jadick (Rutgers Law student)

On February 22, 2017, a US District Court issued a ruling invalidating a law making it illegal for the website IMDB to publish the ages of actors. This law was enacted by the California legislature in order to combat rampant ageism in the film and television industry. According to a study by Time magazine, the careers of female actors peak at age 30, while male actors reach their career peaks at 46.  While many notable actors have spoken out against this problem, it is even more of an obstacle for lessor-known actors, who can have significant trouble getting auditions based solely on their age.

Seeking to tackle this issue of ageism in Hollywood, the California legislature passed a law known as AB 1687 on September 24^th, 2016. This law went into effect January 1^st, 2017, and dictates that “information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.” This law was narrowly crafted to apply only to “commercial online entertainment employment providers” that charge a “subscribers” fee, as well as their free companion sites. The only major public site that appears to be affected by the law is IMDb.com, which has thus far refused to comply.  As noted by the federal court however, it does not seem like this bill would pass constitutional muster.

IMDb Pro is a service that many entertainment industry professionals use to contact each other, and is a major source for casting directors to find potential actors for auditions. IMDb actor profiles include copious amounts of information on actors, including date of birth. The hope is by targeting this service, and forcing them to remove the age information of paying subscribers who request such, there will be less blatant age discrimination in the film and television industry. Though one might rightly point out that actors’ ages are easy to find out from a multitude of sources, the law mainly seeks to protect “working-class” actors who are just trying to get their foot in the door, and whose age information is only easily available on IMDb. As these individuals are not well known, their information would be much more difficult to find on public websites.

However, IMDb has not complied with this law, and has refused over 2,000 requests to remove age information from profiles. In January they filed for a preliminary injunction stopping the Attorney General of California from enforcing the law, which was later granted. Instead of tackling unfair industry practices, the website argued that the state had “chosen instead to chill free speech and to undermine access to factual information of public interest.” It alleges that the law violates the First Amendment guarantee to freedom of speech, and therefore it should not be enforced.

One of the advantages of the law is that it seems to be narrowly tailored; the wording only practically affects this specific site for now, which is the main source of information hiring parties use. It has also been argued that because the speech on IMDb is “distributed in order to propose a commercial transaction” (hire this actor), this information could be construed as commercial speech, which is subject to less constitutional protection. Under Central Hudson Gas & Electric Corp. v. Public Service Commission, a regulation of lawful commercial speech can stand only if it directly advances a substantial state interest and does so using a technique in proportion to that interest. Reducing age discrimination seems to be a substantial government interest, and the bill only affects paid subscribers, so the law is arguably constitutional.

However, other aspects of the bill show that it is in fact not constitutional. As noted by Judge Vince Chhabria of the Northern District of California, a major reason for this is that though the state does have a compelling goal, the bill is not “necessary” to advance that goal and it would not meaningfully combat discrimination. The judge clearly did not buy that state’s argument that such speech was commercial, and so applied strict scrutiny to the law rather than intermediate (where they would only have to prove the law was substantially related to an important objective.

In the continuing legal battle over this law, it is not likely that the state will be able to prove constitutionality in light of the current injunction. In addition to the reasons stated by the federal judge, the means of the law only give the power to censor to paying subscribers; free users are not protected. Further, there may be a better method legislation could use, such as directly regulating discrimination rather than enacting laws restricting speech. All in all, though the legislature did attempt to narrowly tailor the bill to protect a substantial interest, the constitutional protections of free speech lean towards the law being unconstitutional, as it only seeks to censor factual information and does not effectively address the root cause of the issue it seeks to rectify.

By Lindsey Stiles (Rutgers Law Student)

White House directives put a muzzle on federal agencies as landing teams were put in place to manage agency re-alignment with the incoming Administration’s political agenda.  These so-called “gag orders” halted external communication, prohibiting agency employees from publishing news releases, social media posts and blog updates, a move that led to cries of censorship and violations of free speech.  Advocates rebelled on social media while other media outlets reported accusations that the Administration was specifically targeting agencies and programs that focus on climate change research, such as the Environmental Protection Agency.

This is not surprising considering President Trump’s history of climate change denial, tweeting as early as 2012 following President Obama’s reelection that “[t]he concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.”  Nor are they calmed by his choice of Oklahoma Attorney General Scott Pruitt (R), who has downplayed the nature and extent of climate change, to lead the EPA.  Additional concerns arose following comments made by incoming EPA official, David Kreutzer, when he suggested that we think of the positives of more carbon dioxide in the atmosphere, such as that it promotes plant growth.

But attacks on the Administration’s freeze of external communications suggesting a violation of free speech is overblown and, perhaps for the foregoing reasons, misguided.  A number of commentators, including members of the Administration’s landing team, maintain that public response has distort[ed] “what appear[s] to be typical events … into perceived acts of political malice.”  In other words, it is not uncommon for new Administrations to “pause” communication so that they can review the information and make sure that the information being disseminated aligns with its policy goals.  Nor is it abnormal for administrations to try and control information in an effort to promote their political agenda. However, there is concern that this Administration’s attempt to control information appears to be “more sweeping” than ever before.

Spokesmen for the Administration’s EPA transition team announced that scientists’ research will be subject to review on a “case by case basis” before it may be published in an effort to ensure “that the voice coming from the EPA is one that’s going to reflect the new Administration.”  More recently, congressional leaders have been inspired by the new climate change-doubting Administration in their renewed discussions of legislation designed to restructure the procedure by which the EPA utilizes scientific research in creating regulations.  The first bill, also known as the Secret Science Reform Act, would permit regulations based only on scientific findings that are both reproducible and publicly available. Under the second bill, the EPA Science Advisory Board Reform Act, the board would be reconstructed so as to have fewer scientists and more “public input,” including industry representatives.  While both certainly violate the agency’s integrity policy, which protects scientific findings from political interference and personal motivations, it is less certain whether they constitute an abridgment of free speech.

Although the question of whether scientific research is subject to constitutional protection remains unsettled, the Supreme Court has hinted that scientific speech is a protected form of expression.  Specifically, and especially relevant here, the Court found that “[t]he First Amendment protects works which, taken as a whole, have serious … scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” (emphasis added.)  Thus, it would appear that the proposed legislation, which specifically targets scientific research conducted and utilized by the EPA, might directly and/or indirectly violate free speech. The proposed limitation on “useable” scientific data would indirectly prohibit the use of protected personal health information as well as studies of one-time events, (think Gulf oil spill), delegitimizing otherwise valuable and reliable studies.  Similarly, opponents of the Science Advisory Board Reform Act allege that it would lead to a stacking of the board with scientifically unqualified, industry-friendly members who will suppress or otherwise misrepresent any research which interfere with industry goals.  Moreover, the pressure to produce politically favorable results not only undermines the marketplace of ideas, but also discourages and represses true scientific inquiry.

So what of the fact that we are talking about government employees?  On the surface it appears that the government is free to suppress their scientific findings not in alignment with its political agenda.  It is generally accepted that the government as an employer may exert more control over its employees than it may over the average citizen.  Moreover, in 2006, the Supreme Court found that speech owing its existence to a public employee’s professional responsibilities is not protected. However, the 2012 Whistleblower Protection Enhancement Act might extend these First Amendment protections to those government scientists who report any manipulation or other political interference with their work to the extent they can show such disclosure concerned government activity they reasonably believed to violate a rule (such as the EPA’s integrity policy), is an abuse of authority or where they can show a substantial and specific danger to public health or safety.

As much of the outcry appears to stem from assumptions based on campaign rhetoric and political appointments, whether the EPA’s research is in danger remains to be seen.  That being said, agency scientists who enjoy less protections than the average citizen may be limited to whistleblowing as their only means by which to protect their research.

By Lori Smith (Rutgers Law Student)

As the birthplace of the free speech movement, it is ironic that the University of California, Berkeley (UC Berkeley) has been under attack with allegations of stifling free speech on its campus. It started when the Berkeley College Republicans booked controversial writer and now former Breitbart news editor, Milo Yiannopoulos, to be a guest speaker. Almost 100 faculty members immediately signed letters of protest urging the administration to cancel his visit; and on the night Yiannopoulos arrived, 1,500 people showed up to protest. While initially peaceful, the protests escalated to dangerous riots when roughly 150 anti-fascist radicals appeared with clubs and shields and caused over $100,000 in damage. The “masked agitators” lit fires, hurled Molotov cocktails, smashed windows, and tore down police barricades. Out of concern for public safety, UC Berkeley administrators canceled the right-wing event just hours before Yiannopoulos was set to speak.

Believing UC Berkeley was obstructing conservatives’ First Amendment right to free speech, critics reacted strongly, including President Trump who tweeted this threat:

Federal funds account for $370 million of the total $673.9 million UC Berkeley receives in research funding from external sources each year. This figure does not include the millions of federal dollars that flow to UC Berkeley in the form student loans and grants to cover the cost of attendance (e.g. 31% of students receive income-based federal Pell grants). Coupled with Trump’s viewpoint of California in general, one cannot help but wonder whether President Trump was just engaging in another Twitter rant, or if UC Berkeley should brace itself to lose a significant chunk of change, including more than half of its total research funding.

While the federal government is permitted to impose certain conditions on federal spending, there are no prior instances of a POTUS linking free speech and federal funds. President Obama once issued a warning to public schools regarding the use of bathrooms by transgender students, but it was grounded in Title IX law that penalizes schools found to be discriminatory with a loss of Title IX funds. While the executive branch may try to pull federal funds from public institutions for civil rights violations, experts agree that, as of now, it cannot do so on free-speech grounds. For Trump to withdraw funding from UC Berkeley, he would first have to ask Congress to pass a new law.

Hypothetically, at President Trump’s urging, the Republican-majority Congress could pass a law or budget bill that puts conditions on the federal funding provided to “out-of-control” California and liberal-leaning UC Berkeley, but numerous Supreme Court decisions have imposed limits on any such conditions that protect states from vindictive policymaking. For starters, if Congress wants to condition states’ receipt of federal funds, it must do so unambiguously, enabling states to knowingly exercise their choice of participating in a federally funded program. Conditions must also be legitimately related to the federal interest in the particular project or program being funded.

But more importantly, and on point with the situation here, any conditional spending must not be “coercive,” whereby a state is unconstitutionally forced to comply because it needs the federal money to operate. For example, in an opinion primarily authored by Chief Justice Roberts, the Court held that Congress’ conditioning of a state’s federal Medicaid funds on whether the state acted in accordance with the Affordable Care Act was unconstitutionally coercive. While they did not unite under any single opinion, a majority of the Justices concluded that Congress has no authority to order the states to regulate according to its instructions. Congress may offer the states grants and require the states to comply with accompanying conditions, but the states must have a genuine choice whether or not to accept the offer.

Thus, given relevant case law, it is unlikely that Trump and Congress could succeed in penalizing UC Berkeley for events like that which occurred with Yiannopoulos’ visit, for they would have to show that withholding federal funds is uncoercive, unambiguous, and legitimately related to their interests in subsidizing UC Berkeley’s research program and in providing tuition assistance.

Not only is case law against President Trump here, but so are the facts of this case. Despite strong protest, UC Berkeley had actually refused to ban Yiannopoulos, and only cancelled the event (to be later rescheduled) due to real violence, i.e. not just the threat of imminent violence. Moreover, in an open letter to the campus community, UC Berkeley Chancellor Nicholas Dirks deemed the violence “an attack on fundamental values,” and reaffirmed UC Berkeley’s commitment to free speech not only as a “vital component of . . . campus identity but as essential to [UC Berkeley’s] educational mission.” And so, rather than attempt to unconstitutionally coerce UC Berkeley into complying with conditional funding, President Trump should just allow UC Berkeley to continue on with its unwavering pledge to honor the First Amendment.