Volume 62; 2009-2010 • Issue 2

Table of Contents


Internet Governance and Democratic Legitimacy
By Olivier Sylvain
Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The FCC’s adjudication of a dispute concerning a major broadband service provider’s network management practices is a case in point. There, in the absence of any enforceable legislative or regulatory rule, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization. This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much is flawed. Of course, there is something to be said for an administrative regime that defers first-instance rulemaking authority on technologically complex matters to expert standard-setting organizations. Without more, however, such an approach fails to appreciate the unique role of communications in civic life. Historically, policymakers have required that electronic communications governance be addressed one way or another to the public and its institutional political processes, and not insulated from them. Similarly, today, policymakers, at a minimum, should be required to substantiate their hopeful assumption that the pertinent nongovernmental standard-setting organizations have democratically legitimated authority to regulate in the first instance.

This Article is chiefly a critique of the prevailing “technological” and “economic” approaches to Internet governance. It then sketches a “participatory” approach that is attentive above all to civic-minded concerns outside of the competence of technological and economic expertise: namely, (1) universal access and (2) the circulation of issues of local and common concern.

A “Pay or Play” Experiment to Improve Children’s Educational Television
By Lili Levi
This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised.

Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable—attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for high-quality public television children’s programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game playing and FCC content intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of “pay or play” models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.

The Broadband Adoption Index: Improving Measurements and Comparisons of Broadband Deployment and Adoption
By T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, and Michael Stern
Countries around the world are increasingly concerned as to whether the adoption of broadband technology by their respective citizens is sufficient to support economic growth and social development. Unfortunately, such concerns are often expressed in terms of where a country ranks among its peers by means of raw adoption numbers. Such raw data are often misleading and incomplete. In this Article, we propose a different and more policy-relevant approach to adoption measurement. We develop a value-based Broadband Adoption Index (BAI) that compares the actual value to society that results from the adoption of broadband technology to a target level of adoption value. This target level will vary from country to country and is a function of the social value of broadband connectivity, measured as the difference in the social benefits and the costs of broadband. The BAI is specifically designed to accommodate and include the value of different connection modalities, like mobile broadband, into a single index—something that merely summing the number of connections cannot do. We believe that policymakers can adopt aspects of the BAI approach immediately, with particular attention to collecting and using proper information for policy decisions.


Protecting the Cloak and Dagger with an Illusory Shield: How the Proposed Free Flow of Information Act Falls Short
By Jill Laptosky
Journalists who use secret sources may be presented with a staggering dilemma—disclose the source to comply with a subpoena or go to jail to protect the source. Despite the U.S. Supreme Court’s holding in Branzburg v. Hayes (1972), most jurisdictions now recognize that journalists have a privilege not to disclose their confidential sources when compelled to do so by the government. While the degree of the privilege’s protection varies across jurisdictions, the fact that such a privilege exists at all may surprise anyone who has read Branzburg, which held that the First Amendment cannot support the existence of the privilege. Notwithstanding the growing acceptance of the journalist’s privilege, Congress has never enacted a federal shield law. Supporters of a shield law cite recent cases of jailed journalists, such as Judith
Miller, to stress the growing importance of the passage of a federal shield law to protect the Fourth Estate.

This Note discusses the cases of the three U.S. journalists who spent more time in jail for failing to disclose their sources than any other journalists: (1) Vanessa Leggett, an aspiring true-crime novelist, who spent 168 days in contempt; (2) Judith Miller, a New York Times reporter, who spent 85 days in contempt; and (3) Josh Wolf, a freelance video blogger, who spent 226 days. After discussing the history of federal shield legislation, this Note applies the 110th Congress’s proposed Free Flow of Information Act to Leggett, Miller, and Wolf’s cases in order to determine whether the journalists would even be protected by the Bill that their stories inspired. This Note concludes that, even if the Free Flow of Information Act were law when the journalists were subpoenaed, all three journalists would, nevertheless, not have found their confidential sources protected. In other words, the outcome would not have been any different—each journalist would still have served jail time. Finally, this Note recommends provisions that the media should demand in a federal shield law.

Behavioral Advertisement Regulation: How the Negative Perception of Deep Packet Inspection Technology May Be Limiting the Online Experience
By Andrea N. Person
Privacy concerns associated with information available on the Internet has become a central focus for policymakers in Washington, D.C., and around the world. Specifically, the use of deep packet inspection (DPI) technology to offer behavioral advertising on the Internet has become the focus of policy discussions. While there are legitimate concerns related to improper use of this technology, the benefits of the proper use of DPI should not be overlooked. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer’s experience online. To answer this question, this Note first looks at what DPI is, who uses it, and what its purposes are. Second, this Note discusses U.S. court decisions and policy decisions, as well as international business trials that relate to DPI and behavioral advertising practices. Specifically, this Note looks at the actions of the Federal Trade Commission and Congress in responding to DPI. Finally, this Note proposes reforms for policymakers to consider when contemplating regulations for DPI. The Note argues that the benefits of the technology outweigh the harms, and cautions that limiting the ability to use behavioral advertising may also limit the online experience.

Future Imperfect: Googling for Principles in Online Behavioral Advertising
By Brian Stallworth
In a remarkably short time, Google, Inc. has grown from two people working in a rented garage to a pervasive Internet force. Much of Google’s unprecedented success stems from online advertising sales which employ behavioral advertising techniques—techniques that track consumer behavior—thereby
increasing relevance and decreasing the cost of reaching a targeted audience. In the same span that saw Google’s inception and explosive online dominance, the Federal Trade Commission has struggled to define not only the privacy issues involved in online behavioral advertising, but also the practice of behavioral advertising itself. Freed from the restraints of comprehensive federal laws and restrictive federal regulations, Google and its ilk have taken innovative liberties with the collection and use of consumer information. While the Federal Trade Commission ponders the subtleties of online behavioral advertising, mountains of data about consumers are being gathered and manipulated like never before, scarcely subject to legislative or regulatory privacy protections. This Note details the meteoric rise of Google before a backdrop of permissive self-regulation and argues for the establishment of baseline consumer privacy protections for online behavioral advertising.