Events: 2023

Abstract: Digital networked society needs friction-in-design regulation that targets the digital architectures, supposedly smart (data-driven, algorithmic) systems, and interfaces that shape human interactions, behavior, and will (beliefs, preferences, values, intentions). The relentless push to eliminate friction for the sake of efficiency has hidden social costs that affect basic human capabilities and society. A general course-correction is needed.

Friction in the digital networked environment can come in many forms. It can be as simple as a time delay prior to publishing a social media post, a notice that provides salient information coupled with a nudge toward actual deliberation, or a query that tests comprehension about important consequences that flow from an action–for example, when clicking a virtual button manifests consent to share information with strangers. We explore many examples using a simple descriptive framework that helps analysts compare and evaluate them.

One major obstacle in the United States to almost any regulation of how private companies design digital networked technologies and govern social interactions online is the First Amendment and its rigorous protections for free speech. The First Amendment has so often been used to strike down government regulation of various forms of speech that it now has a powerful preemptive effect, which some have called First Amendment Lochnerism. We are most concerned with the foreclosure of regulatory imagination and thus consideration and exploration of new regulatory possibilities, such as friction-in-design regulation.

In this article, we clear the First Amendment brush and reveal an open and mostly underappreciated regulatory territory to explore. We argue that friction-in-design regulation should be understood as Twenty-First century time, place and manner restrictions, akin to laws that prohibit using megaphones in the middle of the night, require permits before marches, and prohibit adult theaters in residential neighborhoods. This does not mean that friction-in-design regulation would escape First Amendment scrutiny altogether, of course. But it would trigger intermediate rather than strict scrutiny, so long as the friction-in-design regulation remained content neutral. In other words, not all friction-in-design regulations would qualify as content neutral time, place, and manner restrictions. We discuss various examples.

At the same time, we advance a novel governance theory that casts time, place and manner restrictions as a useful regulatory model to bring online from the offline context and conventional First Amendment jurisprudence. Properly understood, designed and applied, time, place and manner restrictions constitute a system for balancing individual freedom to communicate with the collective (state) interest in maintaining social order and peace, both offline and online.

Link to paper: https://dx.doi.org/10.2139/ssrn.4178647

Brett Frischmann joined Villanova as The Charles Widger Endowed University Professor in Law, Business and Economics, in 2017. In this new role, Professor Frischmann promotes cross-campus research, programming and collaboration; fosters high-visibility academic pursuits at the national and international levels; has the ability to teach across the University; and will position Villanova as a thought leader and innovator at the intersection of law, business and economics.

A renowned scholar in intellectual property and Internet law, Professor Frischmann came to Villanova from Cardozo Law School at Yeshiva University, where he was director of the Cardozo Intellectual Property and Information Law Program (2011-2016) and a Professor of Law. He is an affiliated scholar of the Center for Internet and Society at Stanford Law School, an affiliated faculty member of the Vincent and Elinor Ostrom Workshop in Political Theory and Policy Analysis at Indiana University, and a trustee for the Nexa Center for Internet & Society, Politecnico di Torino. Professor Frischmann most recently served as the Microsoft Visiting Professor of Information and Technology Policy at Princeton University’s Center for Information and Technology Policy.

Professor Frischmann’s work has appeared in leading scholarly publications, including Columbia Law Review, Cornell Law Review, Journal of Institutional Economics, Journal of Economic Perspectives, University of Chicago Law Review, and Review of Law and Economics, among others. His latest book, co-authored with philosopher Evan Selinger, Re-Engineering Humanity (Cambridge University Press), examines techno-social engineering of humans, various ‘creep’ phenomena and modern techno-driven Taylorism. Professor Frischmann’s books on the relationships between infrastructural resources, governance, commons and spillovers include Infrastructure: The Social Value of Shared Resources (Oxford University Press, 2012); Governing Knowledge Commons (Oxford University Press, 2014, with Michael Madison and Katherine Strandburg); and Governing Medical Knowledge Commons (Cambridge University Press, forthcoming 2017, with Michael Madison and Katherine Strandburg).  In addition, he has written a number of online articles on the intersection of technology and humanity for Scientific American

Prior to his appointment at Cardozo Law, Professor Frischmann was on the faculty of the Loyola University Chicago, School of Law from 2002 to 2010. He also has served as a visiting professor at numerous institutions, including Columbia Law School, Cornell Law School, Duke Law School, Fordham University School of Law and Syracuse University College of Law.