Volume 73; 2020-2021 • Issue 3

Volume 73.3 Full Issue

Welcome to the third Issue of Volume 73 of the Federal Communications Law Journal (Journal), official journal of the Federal Communications Bar Association (FCBA). This Issue contains topics spanning from deceptive media moderation to law enforcement use of private consumer surveillance data. Once again, this Issue exemplifies the increasingly wide scope of telecommunications and technology scholarship.

This Issue begins with an Article authored by Shannon Sylvester, a GW Law alumna, discussing the specific role of deepfakes as a method of spreading misinformation and their effect on a democratic society. Sylvester then provides social media platform-specific proposals to address the harm caused by deepfakes.

This Issue also features three student Notes. In the first Note, Christopher Frascella examines the relationship between law enforcement and companies that sell consumer surveillance equipment, like Amazon and the Amazon Ring. Frascella examines the ways in which consumer protection law could provide recourse for the privacy concerns arising from such relationships. In the second Note, Erin Seeton illustrates that victims of child pornography are further harmed by the current restitution scheme. Seeton proposes an amendment to the Copyright Act of 1976 and explains that such victims may be able to better recover under her proposal. In the third Note, Jasmine Arooni describes vulnerability disclosure programs and the U.S. Government’s role in their governance. Arooni recommends a combination of federal government approaches for similar, private vulnerability disclosure programs.

This Issue also features our Annual Review about this year’s noteworthy decisions with case briefs written by incoming Volume 74 Editorial Board members.

On behalf of the entire Volume 73 team, many thanks to the FCBA and The George Washington University Law School for their support. On my own behalf, many thanks to the Volume 73 Editorial Board, Associates, Members, and Authors who made this Volume possible. As our Volume 73 Editorial Board graduates this May, we leave the journal in the capable hands of the Volume 74 Editorial Board and wish you many successes.

The Journal is committed to providing its readership with rigorous academic scholarship and thought leadership in telecommunications and technology law. Please send submissions to be considered for publication to fcljarticles@law.gwu.edu. All other questions or comments may be directed to fclj@law.gwu.edu. This Issue and our archive are available at www.fclj.org.

Elissa C. Jeffers

Editor-in-Chief

 

Articles

Don’t Let Them Fake You Out: How Artificially Mastered Videos Are Becoming the Newest Threat in the Disinformation War and What Social Media Platforms Should Do About It

By Shannon Sylvester

Deceptive media can be dangerous in a democratic society, which values the pursuit of truth. Deceptive media, as the name suggests, deceives us by distorting the truth and reality. Deepfakes are a type of deceptive media, and they often deceive us by betraying our senses of sight and hearing. As misinformation and disinformation campaigns run rampant on social media sites, deepfakes threaten to add more confusion and uncertainty to the mix. To protect our democratic integrity, the threat of deepfakes needs to be addressed. This Article will show just how damaging deepfakes can be to a democratic society and why we need to take action now. Social media platforms can help mitigate the risks deepfakes pose to society by taking steps to curb the harm of deepfakes through independent fact-checking and stronger enforcement actions. This Article will provide solutions and best practices for social media sites to help them address the growing problem of deepfakes.

Notes

Amazon Ring Master of the Surveillance Circus

By Christopher Frascella 

Global technology companies are partnering with local police to secure buy-in from homeowner watchmen for a consumer-enhanced surveillance regime at the expense of the watched passers-by, with disproportionate impacts on people of color. As long as surveillance-based data collection continues to be profitable, companies like Amazon will continue to seek to grow these partnerships, absent friction that makes them inefficient. Although the most comprehensive solution would be a meaningful federal privacy law, a more immediate means of mitigation exists in consumer protection law. Consumer privacy laws do not adequately address the underlying privacy issues of these technologies (especially for their use by law enforcement); but as surveillance technology rapidly expands, the faster remedy of friction should take priority over thorough regulation.

Can Victims of Child Sexual Abuse Material Use Copyright as a Method of Full Restitution from Possessors and Distributors?

By Erin Seeton

A victim of child sexual abuse material (i.e., child pornography) negotiated with her abuser for the copyright ownership of the illegal images. The intent was to sue for copyright damages under Title 17 as a method of gaining full financial restitution from abusers. The Supreme Court has never ruled on whether a work that is illegal in its creation would be afforded copyright protection if an owner attempted to enforce their exclusive rights. However, if victims of child sexual abuse material were allowed to sue those who distribute and possess their images for copyright infringement, they would not have to prove that the defendant caused their harm. Such a right would also reduce the number of cases litigated in order to fully recover. This Note explains the basics of child sexual abuse material’s harm, the victim’s restitution schemes currently in play, and why those fail to provide full financial recovery to victims. Ultimately, this Note argues that victims could gain fuller restitution using current copyright law and that additional changes to the Copyright Act of 1976 would facilitate victims’ use of the system.

Debugging the System: Reforming Vulnerability Disclosure Programs in the Private Sector

By Jasmine Arooni

Vulnerability disclosure programs (VDPs) allow organizations to crowdsource solutions to cybersecurity challenges. Both the private sector and U.S. federal government solicit the specialized skills of independent, third-party security researchers who find and report unknown security vulnerabilities in an organization’s systems. Security researchers are rewarded for submitting their findings to the organizations that host VDP programs. But the current anti-hacking laws in the U.S., combined with poor drafting of VDP program terms on the part of organizations that host VDP programs (host organizations), create a legally hostile environment for security researchers. The absence of standard VDP language and practices may chill crowdsourced cybersecurity due to inadequate legal protections for researchers. Crowdsourcing systematic cybersecurity risk leads to sizable cost and time saving for host organizations, which, in turn, should incentivize host organizations to encourage, reward, and protect external security researchers. The federal government’s involvement in VDP, through its presence at the forefront of VDP hosting and standardization, exemplifies the benefit of a VDP which considers both host organization and security researcher risks. In contrast, many private sector VDPs continue to contain structural inconsistencies and legal inadequacies. This Note explores the importance of a source of standard guidance for VDPs in the private sector and argues that the emergence of the U.S. government as an aggressive and successful VDP entrant plays an important role in the reform of private sector VDPs. The federal government can impact private sector VDPs by setting an example through government agency VDP practices and influential standard-setting mechanisms, using the DOJ’s VDP Framework as a model for sustainable private sector reform.

Communications Law: Annual Review

COMPTEL v. Federal Communications Commission

Competitive Enterprise Institute v. Federal Communications Commission

Barr v. American Association of Political Consultants