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Volume 76; 2023-2024 • Issue 2

Volume 76.2 Full Issue

EDITOR’S NOTE

          The Federal Communications Law Journal is proud to present the second Issue of Volume 76. FCLJ is the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). We are excited to present the second Issue of this Volume showcasing the diverse range of issues encompassed by technology and communications law. This Issue explores novel approaches to legal questions in areas of trivial computer use and the FCC’s network resiliency efforts, as well as an analysis of federal obligations to Tribal Nations.
          This Issue begins with an article from Christopher S. Yoo, the John H. Chestnut Professor of Law, Communication, and Computer & Information Science and Founding Director of the Center for Technology, Innovation & Competition at the University of Pennsylvania, and Alex Mueller, a CTIC Research Fellow at the University of Pennsylvania Carey Law School. Their Article considers China’s growing Internet standard-setting ambitions and what this could mean for the future of a unified, global Internet.
          This Issue also features four student Notes, all of which explore innovative ways to apply existing frameworks to novel technology issues.
          First, Angela M. Gasca explores how Amazon’s acquisition of One Medical revealed gaps in health data regulation and how those gaps might be filled.
          In our second Note, Benjamin A. Soullier argues for a more equitable treatment of trivial computer use by narrowing the Computer Fraud and Abuse Act (CFAA).
          In our third Note, Benjamin Duwve proposes the FCC borrow from the Department of Energy’s proactive framework to bolster its network resiliency efforts.
          Finally, Morgan Gray analyzes Tribal Nations’ claims to wireless spectrum based on treaty obligations and the Federal Trust Responsibility.
          The Editorial Board of Volume 76 would like to thank the FCBA and The George Washington University Law School for their continued support of the Journal. We also appreciate the hard work of the authors and editors who contributed to this Issue.
          The Federal Communications Law Journal is committed to providing its readers with in-depth coverage of relevant communication law topics. We welcome your feedback and encourage the submission of articles for publication consideration. Please direct any questions or comments about this Issue to fclj@law.gwu.edu. Articles can be sent to fcljarticles@law.gwu.edu. This Issue and our archive are available at http://www.fclj.org.

              Catherine Ryan

              Editor-in-Chief

 

Articles

Crouching Tiger, Hidden Agenda? The Emergence of China in the Global Internet Standard-Setting Arena

By Christopher S. Yoo & Alex Mueller

China is making an active push to enlarge its role in the development of Internet-related technical standards. The prevailing narrative surrounding this trend suggests that Beijing is aiming to uproot the liberal, democratic values embedded in the Internet’s technical foundation and governance arrangements in favor of authoritarian-friendly alternatives. For many, these fears were fully realized when Chinese tech giant Huawei came to the UN-affiliated International Telecommunications Union (ITU) and proposed the development of a future core Internet protocol called “New IP.” This proposal allegedly sought to redesign the architecture of the Internet in a way that would both enhance and export the Chinese government’s capacity for digital repression. Informed by the understanding of Chinese standards influence as a geopolitical and ideological threat, many are now calling for a more aggressive response to countering Chinese engagement in Internet standards bodies. Yet, the conventional narrative seems to be missing something. Specifically, it overlooks the fact that the sophisticated Internet control apparatus China has developed over the years can already censor and surveil quite effectively at present and that shifting responsibility for core protocol development to the more state-driven ITU would not necessarily enhance its ability to do so. A more comprehensive understanding of this trend is needed.

Using New IP as the primary case study, this article examines China’s standard-setting push, its potential motivations, and its implications for the future of the global Internet. We conclude that it is far from clear that New IP was indeed intended as a trojan horse for digital authoritarianism. Observing that technical evolution of the Internet—particularly the type endorsed in Huawei’s proposal—plays a prominent role in China’s long-term industrial policy strategy, we find it equally plausible that New IP was motivated by economic considerations, something that has largely been absent from the debate over China’s standards ambitions. We thus caution against the presumption that Chinese-developed standards are intended to advance the cause of digital repression as well as against politically driven opposition to growing Chinese participation at Internet standard-setting bodies. This insight is crucial, as the way American policymakers and Internet stakeholders respond to this trend will undoubtedly impact both the future of the global Internet and U.S. technological leadership in this domain.

Notes

By Angela M. Gasca

On February 22, 2023, Amazon acquired One Medical, a membership-based primary health care provider. Both Amazon and One Medical claim that patient data is protected under the Health Insurance Portability and Accountability Act, but this statement is misleading: HIPAA as it exists today does not adequately protect or regulate patient health information in the context of a non-clinical entity subsuming a provider of health care services. Personal health data generated from Amazon customers, and from Big Tech users in general, falls outside the scope of HIPAA protection. But where HIPAA falls short, Section 5 of the FTC Act provides a gap filler. This Note will discuss how existing law—specifically the FTC’s Section 5 authority, the Hart-Scott-Rodino Act, and elements from the California Consumer Privacy Act—could be used in the future to regulate health data acquired by non-clinical entities through mergers and acquisitions at the pre-merger stage.

 

This Note focuses on the potential for overbroad application of the 18 U.S.C. § 1030(a)(2)(C) felony enhancements for hacking to further another crime or tort, specifically as applied to car theft and the use of car GPS computer systems. The Supreme Court’s decision in United States v. Van Buren implied a “gate” was necessary for someone to breach authorized access to a protected computer and such gates could potentially be physical barriers. Additionally, the decisions in United States v. Steele and United States v. Yücel determined there was no double jeopardy issue with the CFAA felony enhancements and a protected computer can be considered any device connected to the Internet or another interstate or international cyber network, respectively. After these decisions, prosecutors now have the discretion to charge the statute much more broadly. As necessary everyday lifestyle becomes more dependent on computer processing capabilities and network connections, there is also a necessity for a change in the statutory language or at minimum, implement a narrower legal standard in courts to avoid improper enforcement. Therefore, this Note will argue the felony enhancements for § 1030(a)(2)(c) should be applied under a new “Substantial Furtherance Test,” based on Federal attempt law, to determine if the defendant’s unauthorized computer use knowingly and substantially furthered a separate crime or tort. The amended statute will specifically and exclusively apply to computer use that is critical to the attempt or completion of another crime or tort. Finally, this would serve to prevent the federal government from ascribing the enhancements to computer use that, if isolated, would not be a crime under the CFAA, while continuing to enforce criminal liability for actions that align with the original purposes of the CFAA.

 

From One Sector to Another: Applying a Proactive Framework to the FCC’s Network Resiliency Efforts

By Benjamin Duwve

Extreme weather due to climate change is creating and will continue to create vulnerabilities across the American communications network in the coming decades. The Federal Communications Commission currently employs a retroactive approach to resolving damaged network infrastructure through funding programs and requirements for outage reporting. To build resiliency in the nation’s communications network, the Federal Communications Commission can draw inspiration from a Department of Energy statutory scheme and proactively fortify the network to avoid future vulnerabilities. This Note will evaluate the strengths of applying an approach based upon the Department of Energy’s statutory scheme under the Energy Policy Act of 2005 to the Federal Communications Commission’s regulation of the communications network. The Federal Communications Commission has the capability to expand on the Broadband Deployment Accuracy and Technological Availability Act to apply principles from the Department of Energy’s statutory scheme and strengthen the resiliency of the communications network.

 

Reclaiming the Airwaves: An Analysis of Claims to Wireless Spectrum by Tribal Nations Based on Treaty Obligations and the Federal Trust Responsibility

By Morgan Gray

In the wake of the COVID-19 pandemic, it became abundantly clear that communities without access to reliable and affordable broadband service would be left behind. Referred to as ‘the least connected people in America’s tribal communities face some of the greatest obstacles in bridging the digital divide predominantly affecting rural communities. A number of factors, including challenging topography leading to increased infrastructure construction costs, significantly hinder broadband deployment within Indian Country. While wireless carriers and service providers lack incentivization to invest in the infrastructure necessary to deploy broadband in tribal communities, tribal nations themselves are uniquely suited to lead this effort. Essential to their success is obtaining access to wireless spectrum. The existing regulatory framework governing the use and allocation of spectrum disadvantages tribes and is further indicative of the federal government’s failure both as a trustee in the management of tribal resources and under its treaty obligations to protect tribal access to valuable property. This Note analyzes the legal claims to wireless spectrum that tribes can assert under existing frameworks, and the implied treaty promises to protect a tribe’s access to spectrum.