Municipal Wireless Broadband: Hype or Harbinger? – Article by Sharon E. Gillett

From Volume 79, Number 3 (March 2006)

Municipal wireless is an important trend, but not for the reasons implied by much of the popular reporting that surrounds this topic. Cities are unlikely to dominate the roster of wireless broadband operators that directly serve the residential and business public. Municipalities, however, have been significant early adopters of innovative unlicensed wireless broadband technologies, providing both a market toehold to innovative products and services using those technologies, and an experimental testing ground for novel organizational models. Most cases of municipal wireless involve the use of unlicensed wireless broadband to meet the local government’s own needs for ubiquitous broadband services, or to construct public-private partnerships aimed at facilitating broadband wireless services to the business and residential public. These uses express local government interests long recognized as legitimate: provision of efficient city services, local economic development, and equity within the community. Thus, the concern for policymakers should not be whether cities should be involved in wireless broadband; there are legitimate reasons why they should, and why increasing numbers of them will be. Rather, the important public policy concern is how to ensure that, in the process of facilitating the first uses of wireless, city authority does not get subverted to create artificial limits on future broadband wireless competition. Doing so will require thoughtful melding of separate legal frameworks governing access to city property and public rights of way into a coherent policy that guides when exclusivity legitimately can or cannot feature in public-private partnership arrangements for communications services.



On Software Regulation – Article by R. Polk Wagner

From Volume 78, Number 2 (January 2005)

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibrium of regulation-by-software. The absence of a legal right will stimulate a technological response – and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.”

The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) cyberproperty right – defined as the right to exclude others from one’s network resources. The debate over whether, how, and why concepts of property rights can be extended to bits stored on Web servers, e-mail systems, and the like is both deeply intertwined with technology and fundamentally comparative in nature, bringing the importance of understanding the regulatory costs and benefits of software, as compared to law, into sharp relief.

The analysis that emerges suggests that, contrary to much of the relevant scholarly literature (and perhaps counterintuitively), the availability of technological mechanisms to replace legal rights likely strengthens, rather than weakens, the case for legal regulation in the form of property rights. At least in this context, a software-centric regulatory approach is dominated by regimes premised on property-backed contractual relationships.

Considering the regulatory environment of cyberspace from this perspective may have profound effects on the way we think about the form and function of law online. The nature of cyberspace as particularly sensitive to emerging concerns about the tyranny of software suggests that the online environment might be better suited for a broad property rights regime than has been recognized to date.



E-nuisance: Unsolicited Bulk E-mail at the Boundaries of Common Law Property Rights – Note by Jeremiah Kelman

From Volume 78, Number 1 (November 2004)

E-mail, the most revolutionary advancement in communication since the printing press, has now become the single most important means of intrusion into our daily lives. Because of its inherent convenience and efficiency, e-mail facilitates an unprecedented level of constant, unchecked disturbances from unsolicited bulk messages, also known as spam. As a result of the Internet’s decentralized architecture and flawed technical underpinnings, consumers and businesses face daily mass invasions via e-mail. These continuous transmissions of low value unsolicited e-mails are invasions to property interests. In sum, spam is nuisance.

This Note will analyze the extent to which nuisance law can be applied to the unwanted intrusion of unsolicited bulk e-mail. To date, no adequate legal or technical remedy has been fully tested or put into place to properly protect the inbox from unwanted intrusions. The computer industry has lagged in organizing the massive task of implementing wide scale changes to the e-mail system and currently available technical remedies have done little to stem the enormous tide of spam. Legal solutions applied thus far (via the U.S. Congress and courts) have suffered from confusion, ineffectiveness, and poor tailoring to the core problem. Although a few tough, potentially effective anti-spam laws have been enacted in states such as California, they have since been largely preempted by the recently passed, and widely criticized, Federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”). Significant steps, however, have been made in utilizing the common law in fighting senders of spam (“spammers”). Several cases have been successfully brought against spammers under the common law doctrines of trespass to chattels or personal property. While these trespass arguments continue to be experimented with by courts, the law of nuisance may be an alternative and possibly preferable avenue of redress that has yet to be fully explored in the context of spam.



Cookies and the Common Law: Are Internet Advertisers Trespassing on Our Computers? – Article by Michael R. Siebecker

From Volume 76, Number 4 (May 2003)

Are Internet advertisers trespassing on our computers? The question arises due to the increasing reliance upon cookie technology by Internet advertising firms as the primary means to match online ads with the specific interests and characteristics of individual Internet users.

It seems that whenever we visit a Web site, we are barraged with an increasing number of blinking banner advertisements hocking products and services of every imaginable sort. More than sixty billion advertisements per month are carefully selected for us and sent to our computers by a single Internet advertising firm, DoubleClick, Inc. In order to increase the effectiveness of the ads, DoubleClick deposits small text files or “cookies” on our computers in addition to sending us the banner advertisements. Like most other Internet advertisers, DoubleClick uses cookie files to collect and maintain detailed consumer profiles that reflect the online practices, preferences and other personal characteristics of each individual who surfs the Web. Based on those detailed consumer profiles, DoubleClick places on the pages of affiliated sites various banner advertisements of client companies that target the specific interests of individuals who happen to visit any DoubleClick affiliated site. Since its inception, DoubleClick alone has placed billions of targeted banner advertisements for client companies on sites across the Internet and some estimate that those ads have been viewed by a majority of all Internet users. To date, DoubleClick has compiled perhaps as many as 100 million user profiles in its databases and, with more than 11,000 affiliated commercial Web sites, DoubleClick remains the largest Internet advertising firm in the world.