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Volume 63; 2010-2011 • Issue 2

Symposium Introduction

Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates
by Christopher S. Yoo


The End-to-End Argument and Application Design: The Role of Trust
by David D. Clark and Marjory S. Blumenthal

Policy debates about the evolution of the Internet show varying degrees of understanding about the underlying technology. A fundamental principle of the design of the Internet, from the early 1980s, is the so-called “end-to-end argument” articulated in a seminal technical paper. Intended to provide guidance for what kind of capability is built into a network as opposed to the devices that use the network, the end-to-end argument has been invoked in discussions about “freedom,” “neutrality,” and other qualities that may be associated with the supply and use of the Internet and with related public policy. This Article builds on the technical discussions of end-to-end to address the design of applications that use the Internet. It explores the role of trust as a factor in decisions about the structure of applications and their interaction with the Internet as part of a larger system.

by Andrea M. Matwyshyn

In the discourse on communications and new media policy, the average consumer–the user–is frequently eliminated from the equation. This Article presents an argument rooted in developmental psychology theory regarding the ways that users interact with technology and the resulting implications for data privacy law. Arguing in favor of a user-centric construction of policy and law, the Author introduces the concept of resilience. The concept of resilience has long been discussed in terms of the structure of technology systems themselves; but, the resilience of the human users of these systems–though equally if not more important to their functioning–has been neglected. The goal of fostering user resilience should be explicitly included in the discourse on technology policy with respect to data privacy and information security; a base of resilient users is an essential building block for the long run of a trusted marketplace in information technology products. Contract law reflects a long standing consideration of resilience concerns and offers promising avenues for “building better users.”

The Internet Ecosystem: The Potential for Discrimination
by Dirk Grunwald

This Article explores how the emerging Internet architecture of “cloud computing,” content distribution networks, private peering and data-center services can simultaneously foster a perception of “unfair” network access while at the same time enabling significant competition for services, content, and innovation. A key enabler of these changes is the emergence of technologies that lower the barrier for entry in developing and deploying new services. Another is the design of successful Internet applications, which already accommodate the variation in service afforded by the current Internet. Regulators should be aware of the potential for anti-competitive practices in this broader “Internet Ecosystem,” but should carefully consider the effects of regulation on that ecosystem.

Wireless Efficiency Versus Net Neutrality
by Charles L. Jackson

This Article first addresses congestion and congestion control in the Internet. It shows how congestion control has always depended upon altruistic behavior by end users. Equipment failures, malicious acts, or abandonment of altruistic behavior can lead to severe congestion within the Internet. Consumers benefit when network operators are able to control such congestion. One tool for controlling such congestion is giving higher priority to some applications, such as telephone calls, and giving lower priority or blocking other applications, such as file sharing. The Article then turns to wireless networks and shows that in addition to congestion issues, priority routing in wireless can make available capacity that would otherwise go unused. Wireless systems that are aware of the application being carried in each packet can deliver more value to consumers than can dumb networks that treat all packets identically. Handsets are both complements to and substitutes for the network infrastructure of wireless networks and any analysis of handset bundling should consider this complementarity. Next, the Article reviews analogous issues in electrical power and satellite communications and shows how various forms of priority are used to increase the total value delivered to consumers by these systems. Finally, the Article observes that regulations that prohibit priority routing of packets and flows on the Internet will create incentives to operate multiple networks.

Spectrum Miscreants, Vigilantes, and Kangaroo Courts: The Return of the Wireless Wars
by Christian Sandvig

It is axiomatic that government licensing is a foundational requirement for the use of the electromagnetic spectrum. Yet in some bands there is no licensing requirement, providing an empirical site that can be used to examine wireless coexistence without licenses. This Article draws on ethnographic work with wireless Internet Service Providers to report on the extralegal means that are used to share or allocate spectrum in these license exempt bands. Operators use a variety of informal arrangements there, including jamming and extortion. It concludes that wireless may be increasingly subject to extralegal allocation, and the outcomes of federal spectrum policy may in fact rest in local hands.


Access to Media All A-Twitter: Revisiting Gertz and the Access to Media Test in the Age of Social Networking
by Ann E. O’Connor

Plaintiffs’ access to media has long been a factor in defamation cases, enabling courts to determine whether that plaintiff is a public figure who must meet the actual malice standard, or whether that plaintiff is a private figure worthy of greater protection from defamation. This component of the public-private distinction can no longer be applied with clear precision, given the advent of social networking and today’s world of widespread media access. In light of the massive changes that have taken place in the media world, the access to media test must be revisited and appropriately retailored to avoid an inappropriate assessment of an otherwise private figure’s social networking capabilities. This Note explores the history of the access to media test and the rise of social networking in today’s media landscape, and argues a reconfiguring of the test is the only way to continue to draw the distinction between public figures and private figures that the Supreme Court originally envisioned–and that it deemed so important. Despite an individual’s excessive number of Facebook friends or Twitter followers, a presence on social networking sites does not necessarily equate to a visible presence in the media as imagined by the Gertz Court.

Restraining’s Orwellian Potential: The Computer Fraud and Abuse Act as Consumer Rights Legislation
by Alicia C. Sanders

In 2009, decided to correct a potential copyright violation by deleting e-books by George Orwell and Ayn Rand from the Kindles of users who had already purchased the offending texts. Two of those users, Justin Gawronski and Antoine Bruguier, claimed that had violated the Computer Fraud and Abuse Act (CFAA) by accessing their Kindles without authorization. The plaintiffs also relied on other causes of action, including breach of contract and trespass to chattels. Although the dispute quickly settled, the Gawronski lawsuit remains a useful case study that shows why the CFAA is a useful protection for consumers. Recently, courts have begun to restrict the application of the CFAA to cases of computer hacking instead of its more expansive applications in employment law. If the statute were restricted along these lines, consumers would lose the unique protections of the CFAA. As it currently exists, the CFAA provides several advantages to consumers that other causes of action do not. First, the CFAA provides a way for consumers to access federal courts, which can ensure a more uniform treatment of Internetbased contracts than does state law. Furthermore, the CFAA also has the conceptual advantage of conceiving of e-book ownership as a bargained-for set of rights in a file. This concept more accurately reflects the reality of the ebook market than common law approaches. To take further advantage of these benefits, a revision of the CFAA expressly creating a cause of action for tethered e-book readers should be added. Such an amendment would prevent companies from attempting to contract around the CFAA.

Television for All: Increasing Television Accessibility for the Visually Impaired Through the FCC’s Ability to Regulate Video Description Technology
by Joshua S. Robare

Video descriptions allow people who have visual impairments to get the full benefits from television. Through voiceovers those who have problems seeing are told what is happening on screen allowing them to get the most out of viewing television. However, the Federal Communications Commission currently lacks the authority to require broadcasters to create video descriptions for their programs following the decision in Motion Picture Association of America, Inc. v. Federal Communications Commission. This situation contrasts with closed caption which allows viewers with hearing problems read the dialog being said on screen. The FCC retained the power to regulate closed captions and as a result they are widely used. Many of the court’s reasons in Motion Picture Association of America are no longer compelling as a result of digital television transition. Video descriptions can become as widely used as closed captioning as a result of new legislation or increased funding.