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Volume 77; 2024-2025 • Issue 2

Volume 77.2 Full Issue

EDITOR’S NOTE

     Welcome to the second Issue of Volume 77 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). Over the course of Volume 77’s publication, we look forward to presenting articles and student Notes that showcase the diverse range of issues in the fields of technology and communications law.

     This Issue begins with an article from Matthew L. Conaty, Doctoral Candidate at the University of Pennsylvania’s Annenberg School for Communication, which analyzes presidential war powers afforded by Section 706(a) of the Communications Act of 1934, their structural weaknesses, and the threat they pose to America’s presidential democracy.

     This Issue also features three student Notes. First, Nicholas Sorice addresses the threat of SLAPP litigation to online consumer reviews, arguing for an application of the FTC’s Rule on the Use of Consumer Reviews and Testimonials to categorize consumer reviews as de facto speech on a matter of public interest, thereby enhancing access to anti-SLAPP protections.

     Second, Sebrina Thomas discusses domestic violence in the modern age, and how the Violence Against Women Act (VAWA) fails to adequately account for technological abuses like revenge porn and sextortion. As a solution, Thomas proposes supplementing the VAWA with language from similar proposed legislation to effectively close the gaps and prioritize the protection of women.

     Third, Vaishali Nambiar analyzes modern law enforcement surveillance efforts that exploit social media data to make immigration decisions. Nambiar argues that such surveillance violates a reasonable expectation of privacy, and by extension, the Fourth Amendment, under the guise of national security, and should therefore require law enforcement to obtain warrants and promote transparent police practices.

     The Editorial Board of Volume 77 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 and technology 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.

Addison Spencer

Editor-in-Chief

  

Articles

Preferred or Prioritized: Probing the Limits of Presidential War Powers Under Section 706(a) of the Communications Act of 193 

By Matthew L. Conaty

Section 706(a) of the Communications Act of 1934 affords the President wartime authority to prioritize common carrier traffic per “the national defense and security.” This article contends that this little-studied and frighteningly expansive law poses grave risks to expressive liberties under an increasingly imperialistic presidency. Tracing the decades-long evolution of this law, the article highlights both its structural weakness and potential for misuse in the digital age, before offering a comprehensive statutory revision. 

 

Notes

By Nicholas Sorice

Online consumer reviews play a vital role in the modern economy. Despite (or because of) this, they are often subject to frivolous lawsuits seeking nothing more than to intimidate their authors into taking them down. Often the emotional nature, time, and fiscal expense of litigation result in success for the bully. Thirty-three states and the District of Columbia have laws on the books that could mitigate this problem: anti-SLAPP laws. However, some types of anti-SLAPP laws—those that use a “public interest” standard to define the scope of speech they protect—have not clearly applied in the context of online consumer reviews. This Note argues that the FTC’s Rule on the Use of Consumer Reviews and Testimonials would make consumer reviews de facto speech on a matter of public interest by collapsing the commonly used “content and context” test into a single point, thus guaranteeing that consumer reviews fall within the scope of anti-SLAPP protection. 

Since 1994, the Violence Against Women Act (“VAWA”) has strived to protect women from violent acts such as stalking, dating violence, sexual assault, and domestic violence. As time has passed, technology has developed and transformed the way we see domestic violence. Technological abuse is now defined as a form of domestic violence in the VAWA, which includes the unlawful dissemination of intimate images, also known as “revenge porn,” and the threat to unlawfully disseminate intimate images, known as “sextortion.” These intimate images can be taken without the individual knowing; they can also be created through deepfake technology where they are manipulated to depict individuals without their consent and/or knowledge. Despite the VAWA’s acknowledge that domestic violence includes technological abuse, Congress has left gaps in the Act by only providing a civil remedy for revenge porn, but not for sextortion or image-based abuse with deepfake technology. In recent years, legislators have introduced different pieces of legislation that would account for these gaps and provide adequate remedies for image-based abuse victims. This Note argues that Congress should seriously consider adopting language and/or provisions from recent legislative reforms, such as the Stopping Harmful Image Exploitation and Limiting Distribution Act of 2023 and the Preventing Deepfakes of Intimate Images Act, to keep pace with today’s technology and sufficiently comport with its goal in protecting women from domestic violence through the VAWA. 

 

Watching and Waiting: Modern Social Media Surveillance of Immigrants and Fourth Amendment Implications 

By Vaishali Nambiar

Over the past decade, with advances in technology, surveillance efforts by law enforcement have become increasingly sophisticated. The latest avenue being targeted by law enforcement is social media platforms. With millions of users, these platforms host a vast amount of valuable data. An individual’s social media data can paint a detailed picture of who they are, showcasing their likes, dislikes, and the important people and places in their lives. Law enforcement agencies have deemed this data useful, particularly in determining who is a threat to the country and making immigration decisions. However, these initiatives have become too invasive and sacrifice the privacy interests of immigrants in the name of national security. This Note urges courts to recognize that individuals retain privacy interests online, and modern social media surveillance techniques utilized by law enforcement are violative of the Fourth Amendment. Additionally, this Note proposes that law enforcement should be required to obtain a warrant prior to carrying out aggressive surveillance tactics. Finally, this Note recommends that there be heightened transparency obligations imposed on law enforcement agencies regarding the efficacy of social media surveillance initiatives.