Volume 64; 2011-2012 • Issue 3

Table of Contents

FCBA Distinguished Speaker Series

WikiLeaks and the First Amendment
By Geoffrey R. Stone
In November 2010, Julian Assange’s WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish such classified information. In the context of these actors, the Act violates the First Amendment unless, at the very least, the government can establish that dissemination of the classified information poses a clear and present danger of grave harm to the nation.

Article

Law and the Open Internet
By Adam Candeub and Daniel McCartney
The FCC has issued a new set of Internet access regulations and policies (namely Preserving the Open Internet Broadband Industry Practices, Report and Order, FCC 10-201, rel. Dec. 23, 2010), which would prohibit broadband service providers like AT&T or Comcast from discriminating against unaffiliated content providers. The FCC’s proceedings, and the network neutrality debate, concentrate on two economic questions: (1) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access, and (2) how to preserve the Internet’s capacity for creativity and innovation. Yet despite the prominence of economics in the debate, economic theory cannot answer these questions. The debate also misapplies normative, legal concepts of discrimination and equal treatment onto Internet traffic management engineering. These concepts worked in a circuit switched telephone network in which equality can exist at switch points, but make little sense in the packet-switched Internet in which equality of outcomes of Internet experience is what matters. With its narrow focus, the debate has also missed the fact that actual Internet disputes, such as the BitTorrent-Comcast Order, involve many legal concerns, such as privacy, that have little to do with discrimination as such. We, therefore, argue for a “bottom up” approach to regulation, analogous to fair use in copyright law, with case-specific adjudications creating a common law of acceptable network practice.

Notes

The FCC’s Sponsorship Identification Rules: Ineffective Regulation of Embedded Advertising in Today’s Media Marketplace
By Jennifer Fujawa
In the contemporary media landscape, the advertising industry is increasingly relying on embedded advertising to reach consumers. The scope of embedded advertising in today’s marketplace raises significant concerns and complicated First Amendment questions regarding the type of regulation needed to suit the interests of all parties concerned. In 2008, the FCC released a joint Notice of Intent/Notice of Proposed Rulemaking entitled Sponsorship Identification Rules & Embedded Advertising, which requested comments on the FCC’s proposed changes to its sponsorship identification rules in light of this growing prevalence of embedded advertising. Yet, four years later, the FCC’s sponsorship identification rules are exactly the same. This Note argues that the negative consequences stemming from embedded advertising far outweigh the potential negative consequences of increased regulation, and that revising the sponsorship identification rules are necessary to better serve societal interests.

BART Cell Phone Service Shutdown: Time for a Virtual Forum?
By Rachel Lackert
The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain the public order is not simple under normal circumstances. On August 11, 2011, San Francisco’s Bay Area Rapid Transit (“BART”) created a paradigm embodying the very essence of this problem by shutting down cell phone and Internet service to prevent citizens from organizing and planning a protest. Both the constitutional and telecommunications law implications of BART’s cell phone and Internet shutdown beg for analysis and reform, especially in an age of rapidly advancing technology. This Note analyzes the legal implications of BART’s shutdown, and sets forth a proposal to conform current technology and the law by recognizing the principle of a “virtual forum” comprised of the Internet and telecommunications networks.

Behavioral Advertising: The Cryptic Hunter and Gatherer of the Internet
By Joanna Penn
In an era where three out of every four Americans have Internet access, the term “surfing” has transformed from riding waves into running the risk of having private information gathered, stored, and disseminated—all without the user’s knowledge or permission. This newfound online practice, known as “behavioral advertising,” is a veritable goldmine for those companies that know the game. But will the FTC or Congress soon make new rules concerning how to play? This Note begins by explaining the differences between behavioral targeting and retargeting and the techniques that the two methods use to collect data. This Note then explores the various areas where unbridled behavioral tracking can cause harm, and concludes with a discussion on how to protect Internet users effectively, whether through regulation, or legislation at a federal level, or through increased transparency and communication by retailers to Internet users.

Reforming Retransmission Consent
By Meg Burton
Under the retransmission consent regulations of the 1992 Cable Act, broadcasters and cable providers must negotiate with one another for permission to retransmit a broadcast signal over a cable system. While the majority of such negotiations are resolved amicably, there has been a growing trend of negotiations resulting in signal blackouts that harm consumers. In March 2010, cable providers filed a Petition for Rulemaking with the FCC arguing that the current regulations are outdated and asking that the FCC alter the regulations to curb harmful negotiation tactics employed by broadcasters. Broadcasters replied that the retransmission consent scheme is working as intended and that the FCC and Congress should resist requests to get involved in the negotiations. The FCC responded with a Notice of Proposed Rulemaking seeking comment on four possible rule changes that might solve the dispute. This Note explores the contours of the current dispute over retransmission consent regulations and examines each side’s proposed solutions. This Note then recommends that the best solution to both level the playing field between the parties and also end harmful signal blackouts is a combination of both adopting some of the FCC’s proposals and legislative action providing for interim carriage and mandatory arbitration mechanisms.

Should Cyber Exploitation Ever Constitute a Demonstration of Hostile Intent That May Violate UN Charter Provisions Prohibiting the Threat or Use of Force?
By Anna Wortham
More and more, the United States and other countries rely on complex infrastructures that are primarily controlled by information technology. Although extremely destructive cyber threats and attacks against nations are a reality, the laws governing cyber exploitation have not kept pace with this threat. Because the United States and other nations may use cyber capabilities offensively as well as defensively, it is important that the laws for engaging in such cyber conflict be well defined. Currently, it seems unlikely that cyber exploitation can ever be regarded as a threat or use of force under the UN Charter because it is typically regarded as espionage, which is permissible internationally. This Note first analyzes whether cyber exploitation can constitute a threat or use of force, and then analyzes whether that should be the case. While the Note concludes that cyber exploitation likely does not constitute a threat or use of force under current law, it finds that, it should constitute such a threat or use of force in some cases. Even in situations where it does not rise to the level of threat or use of force, cyber exploitation should still be prohibited internationally because it can be so much more destructive than traditional espionage.

Book Review

An End to End-to-End? A Review Essay of Barbara van Schewick’s Internet Architecture and Innovation
By Adam Candeub
Amidst much controversy, the FCC released its landmark “network neutrality” order in December 2010. This regulation prohibits Internet service providers, such as Verizon or Comcast, from discriminating in favor of traffic or content that they own or with which they are affiliated. Professor Barbara van Schewick’s recently published book, Internet Architecture and Innovation, could not be timelier. Employing a variety of economic and technical arguments, van Schewick defends the type of regulation the FCC passed as necessary to preserve the Internet’s potential for innovation. My central critique of Internet Architecture is its deployment of economic theories on one side of a highly politicized debate, rather than using economic analysis to elevate that debate. Van Schewick relies on an impressive array of economic approaches but fails to acknowledge their ambiguity. Her argument strings together a succession of questionable economic generalizations, thereby greatly weakening her conclusions. Van Schewick is not alone in using economics in this way. Too many law professors rely on theoretical models but ignore their limiting assumptions, failing to sort through the massive ambiguity inherent in their application. A close examination of van Schewick’s argument, therefore, leads to general recommendations for legal interdisciplinary research methodology.