Volume 54; 2001-2002 • Issue 3

Table of Contents

Masthead

Editor’s Note

Articles

An Efficiency Analysis of Contracts for the Provision of Telephone Services to Prisons
By Justin Carver
As the numbers of prisons and prisoners continue to increase, so does the market for prison services. One of the more lucrative segments of this industry is the telephone market. To the extent that the services are provided to the prisoners, the relationship resembles a third party beneficiary contract, but due to the perverse financial incentives and the political climate surrounding prisons and prisoners, neither the state nor the private entity acts in the best interests of the consumers in particular or of society in general. This Article will analyze the efficiency of these contracts, introduce alternate arrangements, and compare the efficiency of the present contracts to the alternatives.

Why ADCO? Why Now? An Econmic Exploration of Industry Structure for the “Last Mile” in Local Telecommunications Markets
By T. Randolph Beard, George S. Ford, and Lawrence J. Spiwak
This Article discusses important economic characteristics of local exchange markets. First, this Article explains that entry into the market requires large fixed and sunk costs, making entry risky and necessitating scale economies. Consequently, only a few local access networks can supply the market. These networks cannot be small, however, because a large market share is required to realize sufficient scale economies to effectively compete with the ILEC and survive. Secondly, acquiring the needed market share may be difficult for entrants who either attempt to purchase unbundled network elements from the incumbent or attempt to build their own network from the ground up. Given the substantial scale economies required, it may not be possible for a single carrier to acquire sufficient retail market share in a timely manner to exhaust economies of scale in its wholesale network.

Accordingly, this Article shows that reaching a scale of operation that allows the entrant to compete with the ILEC may be best achieved through the entry of an Alternative Distribution Company or “ADCo,” a wholesale-only “carriers’ carrier” for the proverbial “last mile.” The ADCo can consolidate the consumer demand held by retail CLECs, thereby reducing risk and costs by expanding output quickly. The disincentives to wholesale supply possessed by the integrated firm do not exist for the ADCo. As a result, the exclusively wholesale nature of the ADCo permits many providers of advanced telecommunications products and services. As such, their presence in the market should be welcomed and encouraged.

The Concrete Barrier at the End of the Information Superhighway: Why Lack of Local Rights-of-Way Access is Killing Competitive Local Exchange Carriers
By Christopher R. Day
The Telecommunications Act of 1996 contained the promise of a deregulated national telecommunications market with unfettered competition in both the local and long-distance telecommunications markets. Unfortunately, five years after the Act was signed, competition in local telephony is still not a reality in many areas. While some of the blame may be placed on failed business models and the withdrawal of venture capital from the market, a series of regulatory failures have also served to create an inhospitable environment for competitive local exchange carriers. One of the areas where this failure has been most evident is in governmental failure to adequately address municipal rights-of-way access.

This Article analyzes this failure, and presents a number of legislative and regulatory suggestions that could lead to a more coherent national scheme of regulation governing public rights-of-way access for telecommunications carriers. The first section of this Article provides an overview of the two general business models that developed for CLECs in the wake of the 1996 Act, and addresses the general failure of the resale carrier model. The second section provides an overview of Section 253 of the 1996 Act, and the various municipal and judicial interpretations that have created a patchwork of local regulation. The third section provides a series of legislative and administrative proposals that would serve to create a more unified, pro-competitive scheme of rights-of-way regulation throughout the United States.

Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers Under Section 230 of The Communications Decency Act
By Eric M.D. Zion
While we credit employers that provide employees with free Internet access, such access comes at a price to the public because employers are one of the traditional defendents in defamation suits. Complicating matters, Congress enacted the Communications Decency Act. Its section 230 provides broad federal immunity for ISPs when defamatory material of a third party is published using their services. With the passage of section 230, Congress rendered employers immune for the same tort which they are so closely associated. Some argue that employers should not be capable of invoking the immunity because it would allow employers to defame with impunity. This argument is misguided in many respects. Congress took the right step in protecting the Internet as the electronic marketplace of ideas by protecting employers under section 230.

Part I of this Article will explore the relevant background information regarding the extreme importance the Internet plays in advancing the marketplace of ideas. Part II will demonstrate that Congress intended employers to be immune under section 230 as ISPs and provide the substantial justifications for such a position. Finally, Part III addresses a few objections to employer immunity.

Notes

Injunctive Relief in the Internet Age: The Battle Between Free Speech and Trade Secrets
By Adam W. Johnson
The information revolution has led to technological innovations in the movement, storage, and dissemination of information. The Internet allows a person, with good or bad intent, to distribute information to millions of people. This ability raises serious implications when trade secret information is the subject of Internet postings. Once a trade secret becomes publicly available, it loses its legal secrecy, and special legal protection. Additionally, competitors and everyone else on the Internet can gain access to the information. For those who rely on trade secret protection to guard their inventions, this presents a growing concern.

This Note will illustrate the void in trade secret protection arising from the conflicting goals of trade secret law and the First Amendment. This void has allowed third parties to post trade secret information, often procured through inappropriate means or in violation of a duty to maintain secrecy. Part II of the Note sets out the basic frameworks of trade secret and First Amendment law as they apply in these circumstances. Part III examines both sides of this conflict, including the means of resolution used in cases like Ford Motor Co. v. Lane. Part IV explains why injunctive relief should be permitted in trade secret cases when a third party has obtained information from an employee, in violation of a duty of confidentiality. This Note concludes that, because of the gap that has emerged in trade secret protection, courts should begin to allow trade secret owners injunctive relief. This relief will mitigate damages when third parties have, through inappropriate means or an employee’s wrongful disclosures, obtained confidential trade secret information.

Carnivore, The FBI’s E-Mail Surveillance System: Devouring Criminals, Not Privacy
By Griffin S. Dunham
On July 11, 2000, the FBI intorduced Carnivore, an Internet monitoring system. It was designed, and is used exclusively, to carry out court-ordered surveillance of electronic communications. It is a tangible, portable device, tantamount to a phone tap, that allows the FBI to intercept and collect criminal suspects’ e-mail without their knowledge or consent. This Note addresses competing and parallel interests between the government and society to determine the legitimacy and necessity of Carnivore. The purpose of this Note is twofold: first, to demonstrate the need for Carnivore to enable law enforcement to keep up with criminals who utilize cyberspace to communicate criminal plans; and second, to dispel privacy concerns associated with the system by allaying misconceptions and fears related to its implementation and usage.

Part II of this Note addresses the catalyzing reasons for Carnivore’s design and use. Part III describes the FBI’s extensive and mandatory internal procedures that govern the decision to use Carnivore, and addresses the three federal statutes that can empower Carnivore’s use. Part IV explains Carnivore’s method of operation. Part V articulates the privacy concerns raised by privacy advocates. Finally, this Note concludes by addressing policy considerations that should shape the future for Carnivore.

The Digital Divide and Courtroom Technology: Can David Keep Up with Goliath?
By Michael E. Heintz
The federal judiciary recently embraced the technological revolution. Select courts are now equipped with state-of-the-art technology to aid in trial presentations. Before the judiciary made the improvements, litigants had to keep pace with the technological advancements themselves, often at a great cost. One might think that the recent technological improvements made to federal courtrooms would have widened the gap between large and small firms where the available resources are vastly different, but that is not the case. In fact, the installation of new technology into courtrooms serves to equalize what would otherwise be a “digital divide.”

Part II of this Note introduces the technologies available to lawyers when trying cases in the Electronic Courtrooms, and provides a brief overview of the types of technologies available in a judge’s chambers to facilitate caseload management. Part III of this Note analyzes whether large firms have any advantage over small firms or solo practitioners in effectively using the new, increasingly available technology. This portion of the Note compares the actual use of technology by large and small firms, examines reactions from practitioners who used the new systems, and analyzes why small firms and solo practitioners are not disadvantaged when litigating in an Electronic Courtroom.

Book Review

Does Censorship Really Protect Children?
By Michael Grossberg
Marjorie Heins spent much of her career as a lawyer battling censorship with the American Civil Liberties Union. Today, she continues the fight as Director of the Free Expression Policy Project of the National Coalition Against Censorship. In an effort to understand the people who work to constrict the free flow of information, she stepped out of the trenches and into the library to do some research. Not In Front of the Children is the result. In it, Heins analyzes what she argues are the unexamined assumptions that support one of the most powerful weapons in the arsenal of censors: the claim that certain kinds of information must be banned to protect children from harm. Despite its venerable past, Heins challenges the logic and utility of the “harmful to minors” censorship standard. Though she acknowledges the state’s legitimate responsibility to protect the physical and psychological well-being of its youngest citizens, Heins contends that now, as in the past, little evidence can be marshaled to support the assumption that indecent, violent, or other proscribed material harm children in any significant way. Consequently, she concludes that the costs of censorship in the name of child protection far outweigh any demonstrable benefits, and it must therefore be abandoned.