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From Professor Daskal: "As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? The questions were recently addressed in two high-profile judgments from the European Court of Justice and were the subject of ongoing litigation that pitted Canadian and U.S. courts against one another. Meanwhile, a new form of geographically-segmented speech regulation is emerging—pursuant to which speech is limited based on who is speaking and from where, as opposed to what is being said. This Article examines the ways in which norms regarding speech, privacy, and a range of other rights conflict across borders, the power of private sector players in adjudicating and resolving these conflicts, the ways in which governments are seeking to harness this power on a global scale, and the broader implications for individual rights. It offers a nuanced approach that identifies the multiple competing interests at stake—recognizing both the ways in which global takedowns or delinkings can, at times, be a critical means of protecting key interests, and the risk of over-censorship and forced uniformity that can result."
Jennifer Daskal is a Professor and Faculty Director of the Tech, Law, Security Program at American University Washington College of Law, where she teaches and writes in the fields of cyber, national security, criminal and constitutional law. From 2009-2011, she was counsel to the Assistant Attorney General for National Security at the Department of Justice. Prior to joining DOJ, Daskal was senior counterterrorism counsel at Human Rights Watch, worked as a staff attorney for the Public Defender Service for the District of Columbia, and clerked for the Honorable Jed S. Rakoff. Daskal’s scholarship has appeared in the Yale Law Journal, University of Pennsylvania Law Review, Vanderbilt Law Review, Stanford Law Review Online, and Harvard Journal of National Security Law, among other places, and she published numerous op-eds, including in the New York Times, Washington Post, and The Atlantic. She is a graduate of Brown, Cambridge University (UK), where she was a Marshall Scholar, and Harvard Law School. She is currently a Scholar-in-Residence at New America an Executive Editor of the Just Security blog.