Welcome to the second issue of Volume 70 of the Federal Communications Law Journal (“Journal”), the official journal of the Federal Communications Bar Association. In March 2018, the Journal successfully held its 2nd Annual Symposium at The George Washington University Law School. Lawyers from the government, private and public sectors had lively discussions on the issue of how regulation over communications technology should change as new types of technology add jurisdictional complications. Along those lines, this Annual Symposium issue explores the theme of regulation and reform.
The first article of this issue is penned by John W. Mayo, a Professor of Economics, Business and Public Policy, in the McDonough School of Business at Georgetown University. Professor Mayo examines various avenues for regulatory reform, as he sees the importance of regulation in accelerating the deployment of next-generation broadband networks.
The first Student Note is written by Donald Crowell, who suggests that law enforcement’s access to content-based information should be made more difficult, that provisions in the Stored Communications Act should be revised, and that the NTIA should be given the authority to define and regulate electronic communications providers and remote communication service providers. The second Student Note is written by Michael Farr, who seeks to correct what he sees as the FCC’s abuse of transaction review authority by subjecting such transactions ending in voluntary commitments to judicial review instead. In the last Student Note, Alison Cheperdak juxtaposes the privacy rules set out by the FCC and the FTC, and argues that giving the FTC complete jurisdiction over Internet data security and preempting state laws that conflict with FTC’s policies would effectively serve the interests of both the industry and the consumer.
Last but not least, the Journal thanks the Annual Symposium panelists who submitted short articles for this issue. From a proposal to construct a national first responder communications infrastructure, to an examination of the authoritative tensions among the federal government, state legislatures, and the industry, five authors have generously contributed their perspectives on the topic of telecommunications sovereignty.
I believe this issue captures the essence of a student-run journal with a professional edge, as it is not only packed with fresh and diverse ideas on a wide array of relevant topics, but the articles are also varied in length, style, and written by authors at different stages in their professional careers. As always, we welcome your feedback or questions to firstname.lastname@example.org. Please direct article submissions to email@example.com.
Although the United States is deeply divided ideologically, and this divide nominally may seem to halt opportunity for policy advances, this need not necessarily be the case. Notwithstanding our ideological differences, a number of practical opportunities for policymakers to improve economic welfare have emerged, about which there is considerable agreement if not complete political consensus, that allow policy progress. These opportunities create a potential path for practicality to forge agreement even in the face of widespread ideological discord across American society.
This basic thesis is no more evident than in the set of infrastructure industries that policymakers across the political spectrum have identified as crucial for U.S. competitiveness in the 21st century. As such, this paper focuses on broadband technologies (both wired and wireless), which policymakers of all political stripes have identified as crucial for economic growth. To make its point, this paper identifies: (1) the practical, as opposed to ideological, case for regulatory reform in the broadband sector; and (2) a number of available measures that create opportunities for meaningful and beneficial regulatory reform.
The Privacy of “Things”: How the Stored Communications Act Has Been Outsmarted by Smart Technology
By Donald L. Crowell III
Modern technology is rapidly changing the way society interacts and collaborates. Cloud technology is an integral part of this evolution and is being integrated into all kinds of computer-based platforms to provide users with functionality and convenience. To date, Fourth Amendment jurisprudence has failed to keep up with the use of modern technology, and statutes, such as the Electronic Communications Privacy Act (“ECPA”) and the Stored Communications Act (“SCA”) continue to infringe on the rights that citizens hold in their digital property.
The U.S. Circuit Courts of Appeal are split on the application of the Fourth Amendment to digital communications. While the Sixth Circuit in United States v. Warshak found that individuals did have an expectation of privacy in their electronic communications, other circuits, including the Eleventh Circuit in Rehberg v. Paulk, have applied the Voluntary Disclosure Doctrine to determine that no expectation exists. Due to the courts’ failure to reach a consensus in this area, the ECPA and SCA continue to fail to protect the rights of individuals who choose to store their personal files, photos, and other information in the Cloud. Further, the Supreme Court’s holding in California v. Riley, that police officials did not have a right to search an individual’s cell phone incident to an arrest, provided both clarity and ambiguity as the Court limited its holding to the factual context at-hand in the case.
Reform is needed at both legislative and judicial levels. The most crucial of these reforms is raising the threshold for law enforcement’s access to content-based information to require a warrant based on probable cause. Other provisions of the SCA also need to be replaced and amended, including the 180-day distinction and the 90-day renewable delay notice. Additionally, a federal agency, such as the National Telecommunications & Information Administration (“NTIA”), should be given the authority to regulate and define which entities are considered electronic communications providers and remote communication service providers under the SCA. Granting this authority will allow flexibility in keeping up with the changing landscape of communications technologies, which, as seen with the outdated applicability of the SCA to modern technology, is something that is indisputably needed.
Industry can also assist with making warrant and non-warrant requests worthless by developing stronger encryption technologies and standards, as well as encrypting customer Cloud data such that companies cannot access it themselves. This solution would be less viable than others simply due to economic costs associated with not having access to customer data, as well as the likely possibility that the government would find a way to gain access to encrypted data anyway.
Brace Yourself, Voluntary Commitments Are Coming: An Analysis of the FCC’s Transaction Review
By Michael Farr
The role of the Federal Communications Commission (“FCC”) in transaction review is ever expanding. Under its “public interest standard,” the FCC has authority to deny applications or approve transactions involving licenses, subject to conditions. These conditions are made in the form of “voluntary commitments.” Parties to the transaction are left without a choice but to accept these voluntary commitments in order to avoid denial of a deal. Often, these commitments are unrelated or ancillary at best to the transaction at hand. This Note asserts that the FCC uses its transaction review authority to engage in de facto rulemaking, creating policy outside the confines of the Administrative Procedure Act and its organic statute. Such a practice wholly offends the checks and balances enshrined in our Constitution and represents apparent violations of the non-delegation doctrine. This Note thus argues that in order to curb these abuses, transactions ending in voluntary commitments are final agency actions that must be subject to judicial review.
Double Trouble: Why Two Internet Privacy Enforcement Agencies Are Not Better Than One for Businesses or Consumers
By Alison M. Cheperdak
Reasonable and effective Internet privacy laws are essential to the United States’ increasingly digitally-dependent economy. Demonstrating how important sound Internet privacy policies are to the new Trump Administration, among the first bills that President Donald J. Trump passed into law was S.J. Res. 34, which repealed the Protecting the Privacy of Customers and Broadband and Other Telecommunications Services Report and Order (Privacy Order). The Privacy Order was adopted via a party-line (3-2) vote on October 27, 2016 by the then-Democratic led Federal Communication Commission during the final months of the Obama Administration. The Privacy Order placed inappropriate burdens on broadband internet access services (BIAS) with respect to online privacy and created a needlessly complicated regulatory framework that is more likely to confuse and frustrate than help customers.
This Note examines the contradictory and duplicative policies of the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) regarding Internet privacy regulation, and argues that the current regulatory framework is harmful to businesses and consumers. The FCC’s Privacy Order is problematic for four primary reasons: it is (1) confusing to customers; (2) unfair to businesses; (3) not helpful to consumers; and is (4) costly. The FCC’s data security rules also needlessly diverge from the FTC’s approach in many ways without adequately justifying why the FTC’s rules are lacking and in need of the FCC’s stricter standards. The FTC’s Internet privacy rules have not caused substantial harm, and the FCC did not provide evidence of benefits due to increased regulations. Finally, this Note will present several pro-consumer and pro-industry solutions to improve Internet data security rules and regulations, including: (1) creating uniform Internet data security rules and regulations; (2) preempting the FCC’s data security rules so that the FTC has complete control of Internet data security; and (3) preempting state laws that conflict with the FTC’s policies.
This Note focuses exclusively on how private-sector entities handle personal data in commercial settings. It does not concern the government’s access to data that is in the possession of private parties.