Welcome to the first issue of Volume 70 of the Federal Communications Law Journal (“Journal”), the official journal of the Federal Communications Bar Association. I am thankful to our GW Law team that has invested many valuable hours into piecing together a strong publication for this new volume. From cybersecurity, privacy, tax law, cloud computing, to the First Amendment, this issue covers a wide array of relevant topics in the field of telecommunications law.
We are honored to feature two practitioner articles in this issue. The first article is written by Jennifer Urban, an Associate at K&L Gates LLP. In her article, Ms. Urban examines the cybersecurity and privacy issues that arise from drone activities. She makes the interesting and important argument that regulations on Unmanned Aerial Vehicles should address cybersecurity and privacy issues, in order for these regulations to keep abreast of new technology developments within the aviation industry.
The second article is penned by Philip M. Napoli, a professor at Duke University. In his article, Professor Napoli argues that the technological changes undermine the extent to which counterspeech, a concept of which means more speech is an effective remedy against the dissemination and consumption of false speech, can effectively operate as a fundamental assumption of the First Amendment.
Furthermore, the Journal is proud to publish three thought-provoking student Notes in this issue. In the first Note, Rosie Brinckerhoff addresses the phenomenon of Facebook’s facial recognition technology outpacing state and federal laws and regulations. Ms. Brinckerhoff proposes that California courts are in the best position to defend consumer privacy rights, as they can enforce legal principles under state contract law, constitutional law, and tort law to strike down Facebook’s privacy-invasive terms. In the second Note, Katherine Grabar examines the need for an amended Stored Communications Act to address cloud computing technology. Ms. Grabar proposes that Congress needs to enact more jurisdictional provisions to enhance law enforcement’s ability to search for electronically stored data with a warrant based on probable cause. Last but not least, Michael Wallace explores the question of whether Internet streaming service providers are required to pay taxes imposed by the state and local governments. Mr. Wallace suggests that the Internet Tax Freedom Act, as well as the Commerce and the Due Process clauses of the Constitution, can prohibit the collection of such taxes.
We hope you enjoy this issue as much as we have enjoyed putting it together. We welcome your feedback or questions to firstname.lastname@example.org. Please direct article submissions to email@example.com. This issue and our archive will be available at www.fclj.org.
What Is the Eye in the Sky Actually Looking at and Who is Controlling It? An International Comparative Analysis on How to Fill the Cybersecurity and Privacy Gaps to Strengthen Existing U.S. Drone Laws
By Jennifer Urban
Drones are increasingly being used in various sectors of the U.S. economy. Although current drone-specific regulations exist, there is a gap at the federal level for drone-specific regulations that address cybersecurity and privacy issues. Through international collaboration of actors from both the public and private sectors, effective cybersecurity and privacy regulations and Best Practices will hopefully emerge.
This paper begins with background information on drone technology and current drone regulations. Next, there is a discussion on cybersecurity and privacy issues arising from drone operations, along with the current laws that touch on these two areas. Third, an analysis of other countries solutions to cybersecurity and privacy issues portrays new answers that could potentially be implemented in the U.S. regulatory scheme. Finally, the paper concludes with suggestions on the best ways to address drone-specific cybersecurity and privacy issues.
What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble
By Philip M. Napoli
Social Network or Social Nightmare: How California Courts Can Prevent Facebook’s Frightening Foray Into Facial Recognition Technology From Haunting Consumer Privacy Rights Forever
By Rosie Brinckerhoff
Facebook undeniably has extraordinary facial recognition capabilities, so much so that its technology outranks the federal government’s facial recognition database in both size and accuracy. Facebook maintains its enormous and eerily precise database by routinely updating and cultivating photos posted nearly every ten seconds by the company’s 1.86 billion users. In other words, this feat is accomplished with the help of users like you.
With no comprehensive federal data privacy protection law in place to regulate private industry’s use and collection of facial recognition data, Facebook’s 1.86 billion users do not suspect the significant privacy implications threatened by the company’s vague yet deceptively overbearing Terms of Service and Data Policy. Taken together, these policies bestow upon the social media giant free rein over its users’ biometric data and information collected through its use of facial recognition technology.
Facebook simply cannot be trusted to self-regulate, especially when its commercial gain comes at the expense of the privacy of incognizant consumers. “If you don’t like it, don’t use it” is no longer a sustainable argument. Facebook’s brazen and unregulated ability to exploit the biometric identifiers of its billions of users is strictly dependent on both users and courts allowing the company to do so. Yet with only three states espousing applicable biometric collection laws, and a host of other states having nothing to show but failed attempts at regulating facial recognition, legislative efforts simply are not keeping pace with this rapidly evolving technology.
This note seeks to draw attention to the very real problem of Facebook’s facial recognition technology capabilities and its subsequent biometric data collection practices outpacing state and federal laws and regulations. This note will assess Facebook’s capabilities and practices with respect to facial recognition technology and analyze the related privacy implications for consumers. Through an examination of the company’s Terms of Service and Data Policy, this note will demonstrate why California courts should deem Facebook’s user agreements unconscionable in order to safeguard consumer privacy rights. In doing so, this note will conclude by offering three plausible legal avenues for the California judiciary to consider to strike down the imperious and heavily invasive terms that Facebook imposes on its users.
By Katherine Grabar
The Microsoft Corp. v. United States decision relied on the Stored Communications Act, an anachronistic law that prohibits the execution of a search warrant on an overseas data center. Despite Congress’ intent to protect electronic communications, the Act has failed to keep pace with the development of technology. This paper analyzes the need for an amended Stored Communications Act to govern cloud computing technology and how Congressional attempts to do so thus far have been less than satisfactory.
Microsoft’s investment in underwater data centers only exacerbates the ineffectiveness of the Stored Communications Act. To better solve the problem presented in Microsoft Corp., Congress needs to enact more jurisdictional provisions so law enforcement has the ability to search for data with a warrant based on probable cause for electronically stored data for any United States citizen or data geographically stored within the United States. This proposed jurisdictional power can be balanced with a warrant requirement for any stored data and notification requirement to any user whose data is seized.
Taxing the Nontaxable: Are State and Local Governments Allowed to Tax Internet Streaming Service Providers?
By Michael Wallace
In the current climate of multifarious taxation, Internet streaming service providers are uncertain of their obligations to collect and remit sales and use taxes to state and local governments. Most Internet streaming service providers err on the side of caution and abide by the state legislation and local ordinances requiring the collection of these taxes. However, it is unclear as to whether these providers are required to do so?
With the permanent extension of the Internet Tax Freedom Act (the “Permanent Internet Tax Freedom Act”), coupled with the Commerce Clause and the Due Process Clause, Internet streaming service providers may finally have an argument to support not collecting and remitting the sales and use taxes imposed upon them by state and local governments. The Permanent Internet Tax Freedom Act prohibits state and local governments from taxing Internet streaming service providers because they are classified as “Internet access.”
The Commerce Clause prohibits state and local governments from requiring Internet streaming service providers to collect and remit sales and use taxes because of the undue burden on interstate commerce. The Due Process Clause prohibits state and local governments from requiring a company to collect and remit sales and use taxes if that company does not have a physical presence or “certain minimal contacts” with the taxing government. Therefore, federal law and the U.S. Constitution arguably prohibit states and local governments from mandating Internet streaming service providers to collect and remit sales and use taxes to state and local governments.