Volume 77.3 Full Issue
EDITOR’S NOTE
The Federal Communications Law Journal is proud to present the third and final issue of Volume 77. FCLJ is the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). Over the course of Volume 77’s publication, we have had the opportunity to highlight articles and student Notes that showcase the diverse range of issues in the fields of technology and communications law.
This Issue begins with an article from International Tribunal for the Law of the Sea (ITLOS) Judge Osman Keh Karama and Abraham Kazmir. The article analyzes the current legal framework governing the protection of undersea cables and transoceanic pipelines and argues for reforms that address issues such as international cooperation, jurisdictional boundaries, environmental threats, and energy security.
This Issue also features four student Notes. First, Arjun Singh proposes additional statutory provisions to the Foreign Intelligence Surveillance Act (FISA) to enhance impartiality in court proceedings and protect Americans’ “reasonable expectation of privacy” under the Fourth Amendment.
Second, Lenni Elias examines the Illinois Biometric Information Privacy Act (BIPA), arguing that its private right of action should be extended to cases where employee biometric data is mishandled at the hands of employers.
Third, Nathan Eichten discusses the shortcomings of the Telecommunications Act of 1996 and proposes a series of amendments to promote long-lasting competition among leaders in the telecommunications industry.
Fourth, Ellen Manby addresses gender bias in artificial intelligence voice assistants, arguing that European laws prohibiting gender discrimination in advertisements should serve as the framework for U.S. regulation to curb harmful and discriminatory effects.
Finally, this Issue concludes with our Annual Review of notable court decisions that have impacted the communications field in recent years. Each of these was authored by a member of our Journal, and we appreciate their thoughtful analyses of these important cases.
The Editorial Board of Volume 77 would like to thank the FCBA and The George Washington University Law School for their continued support of the Journal. We also appreciate the hard work of the authors and editors who contributed to this Issue.
The Federal Communications Law Journal is committed to providing its readers with in-depth coverage of relevant communication and technology law topics. We welcome your feedback and encourage the submission of articles for publication consideration. Please direct any questions or comments about this Issue to fclj@law.gwu.edu. Articles can be sent to fcljarticles@law.gwu.edu. This Issue and our archive are available at http://www.fclj.org.
Addison Spencer
Editor-in-Chief
Articles
Enhancing International Legal Protections for Undersea Cables and Transoceanic Pipelines
By Judge Osman Keh Karama ITLOS & Abraham Kazmir
This article examines the critical need to strengthen the international legal framework governing the protection of undersea cables and transoceanic pipelines. As global reliance on these vital infrastructures for communication and energy security intensifies, the current legal regime’s limitations pose significant challenges to international stability and economic prosperity. The article analyzes the jurisdictional boundaries, inadequacies in addressing non-state actors and multinational corporations, environmental concerns, and energy security implications within the existing legal landscape. Drawing on recent incidents and emerging threats, it proposes a comprehensive set of reforms to enhance international cooperation, expand jurisdiction, strengthen deterrence and environmental protections, improve monitoring and security, and update regulatory frameworks. The recommendations aim to balance the need for enhanced protection with the principles of freedom of navigation and the interests of various stakeholders in the international community. By synthesizing insights from maritime law, environmental principles, and energy security considerations, this article contributes to the ongoing dialogue on adapting international law to address contemporary challenges in protecting critical global infrastructure.
Notes
By Arjun Singh
The Fourth Amendment guarantees all persons within the United States a “reasonable expectation of privacy” against surveillance, except upon the issuance of warrants for probable cause. The Foreign Intelligence Surveillance Act (“FISA”), an attempt to create a system for effectively monitoring and preventing threats to national security, has often run afoul of this constitutional guarantee. In a digital age, gathering foreign communications—especially by large surveillance programs—invariably leads to the illegal collection of private information about United States persons protected by FISA. Preventing such collections has proven difficult, especially given the in camera and ex parte nature of the courts’ review of warrant applications under FISA. These courts lack the benefits of an adversarial process, where counterarguments may be heard by an impartial body, that otherwise produces fair and legitimate outcomes in the federal judiciary. The need for secrecy in the national security context, however, has impeded previous attempts to create an adversarial system. Consequently, this Note will propose a framework within FISA to create an adversarial system by empowering an existing statutory body of experts to intervene in court proceedings against the government’s position and ensure better protection of third parties under FISA.
As biometric technologies continue to flood the marketplace and modern society, states are eager to enact legislation to account for their citizens’ fears that collected biometric data will be misused. A central part of such a statute, and a significant component of the debate surrounding the enactment of biometric data protection statutes, is the enforcement mechanism accompanying the law. This Note looks to Illinois’s Biometric Information Privacy Act (“BIPA”), the only statute of its kind with a private right of action, as a case study illuminating which enforcement mechanism is best equipped to further the legislature’s purpose of protecting citizen’s biometric data. Drawing on the experience of BIPA, this Note concludes that employees are most vulnerable to biometric data mishandling at the hands of their employers, thus this group should have access to a private right of action in any forthcoming statute. However, BIPA is not perfect. The law has generated massive class action suits and enhanced litigation which is troubling to other states. To alleviate these concerns, this Note further proposes that litigation falling outside of the employer-employee relationship should be channeled through public enforcement.
Telecommunication Breakdown: Promoting Competition Through Reform of the Telecommunications Act of 1996
By Nathan Eichten
This Note explores the history of the telecommunications industry before the Telecommunications Act of 1996, and how that Act has influenced the industry as we know it today. The Telecommunications Act of 1996 aimed to promote competition in the previously monopolized telecommunications industry, but the opposite effect occurred. Today, three major firms dominate the telecommunications industry: AT&T, Verizon, and T-Mobile. This Note presents amendments to the Telecommunications Act of 1996 that are necessary to achieve the Act’s initially stated goal. It identifies the shortcomings of the Act’s original language and analyzes the resulting historical implications. Through this analysis, the suggested amendments specifically address the Act’s unintended results and strives to fix them, with the ultimate goal of establishing a more robust competitive landscape in the telecommunications industry for decades to come.
Addressing Gender Bias in Voice Assistants: Using European Advertising Nondiscrimination Laws as a Framework for Regulation
By Ellen Manby
Voice assistants have become a seamless part of our everyday interactions and activities. We ask Siri about the weather, our shopping lists, and sometimes even take our bad moods out on voice assistants. The default tone of voice assistants has led to their typically being associated with the female gender. This female-default tone, as well as many programmed responses of voice assistants, serve to entrench harmful, and often subconscious, gender biases. These voice assistants need to be regulated, and the United States should look to European rules aimed at curbing these kinds of gender biases in advertising, as a template for its regulation of voice assistants.