Tag: Computer & Internet Law

Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age – Article by Danielle Keats Citron

From Volume 80, Number 2 (January 2007)
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A defining problem of the Information Age is securing computer databases of ultrasensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher’s strict-liability standard as undermining economic development, American courts and scholars embraced it once the economy matured and catastrophes such as the Johnstown Flood made those hazards impossible to ignore.

Public choice analysis suggests that a meaningful public law response to insecure databases is as unlikely now as it was in the early Industrial Age. The Industrial Age’s experience can, however, help guide us to an appropriate private law remedy for the new risks and new types of harm of the early Information Age. Just as the Industrial Revolution’s maturation tipped the balance in favor of early tort theorists arguing that America needed, and could afford, a Rylands solution, so too the Information Revolution’s deep roots in American society and many strains of contemporary tort theory support strict liability for bursting cyber-reservoirs of personal data instead of a negligence regime overmatched by fast-changing technology. More broadly, the early Industrial Age offers valuable lessons for addressing other important Information Age problems.

 

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Pacifica is Dead. Long Live Pacifica: Formulating a New Argument Structure to Reserve Government Regulation of Indecent Broadcasts – Note by Joshua B. Gordon

From Volume 79, Number 6 (September 2006)
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At 9:00 PM on April 7, 2003, Fox Broadcasting (“Fox”) aired the penultimate episode of Married by America, a reality television show that allowed the public to select potential spouses for its contestants. Six minutes of the episode detailed the remaining two couples’ bachelor and bachelorette parties, during which strippers attempted to “lure participants into sexual activities.” Of the five million people who watched the broadcast, ninety complaints were filed with the Federal Communications Commission (“FCC” or “Commission”), the government agency that regulates television communications. In October 2004, the FCC determined that the six-minute segment contained explicit and patently offensive depictions of sexual activities. It thus determined that the content was indecent and in violation of federal law. For this violation, the FCC penalized both Fox and 169 Fox affiliates by issuing a Notice of Apparent Liability for $1,183,000 in fines. At the time, this was the largest proposed fine, or “forfeiture,” in FCC history.

 

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Wireless Telecommunications: Spectrum as a Critical Resource – Article by Gerald R. Faulhaber

From Volume 79, Number 3 (March 2006)
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Telecommunications services have always been a mix of wireline services, such as wireline telephone, cable television, and Internet access, and wireless services, such as AM/FM radio, broadcast television, and microwave-satellite transmission of electronic signals. Each mode of service has certain properties, both beneficial and detrimental. Wireline has the potential for almost unlimited capacity, such as the use of multigigabit fiber optics, but requires that the service be delivered to a particular location. Wireless frees the customer from being tied to a specific location, allowing service to be rendered wherever the customer is, but suffers from fading or nonexistent connections and possible privacy concerns. The mix between wireline mode and wireless mode is in constant flux; recently, however, the focus of the market has been shifting toward wireless. Cellular telephony has exploded worldwide, and after a slow start, the market penetration has increased dramatically. Meanwhile, the number of wired access lines in the United States has been declining, for the first time since the Great Depression.

The ability of engineers and innovative firms to bring new and compelling wireless telecommunications applications to an ever-communicating market is very impressive, and bodes well for even greater applications in the future. But even the cleverest of engineers cannot escape the one critical resource absolutely required for wireless services to be deployed: electromagnetic spectrum. Wireless services and devices are all radios, emitting electromagnetic radiation into free space and receiving such radiation. If other nearby transmitters are emitting radiation at the same frequency, the intended receivers will be unable to disentangle the signal they wish to receive from the spurious “interfering” signal. Fundamental to wireless technology is the need to solve this potential interference problem. Since the birth of radio in the 1920s, the interference problem has been solved by government licensing of transmission rights; each licensee is permitted to transmit from a particular place at a particular frequency at a maximum power for a particular application (for example, broadcast radio or police dispatch). Licensing has traditionally been a highly bureaucratic and political process. The outcome, all agree, has been a hugely inefficient use of spectrum resulting from this “command and control” regulatory allocation of a scarce resource.

 

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

From Volume 79, Number 3 (March 2006)
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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.

 

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On Software Regulation – Article by R. Polk Wagner

From Volume 78, Number 2 (January 2005)
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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.

 

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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)
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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.

 

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

From Volume 76, Number 4 (May 2003)
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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.

 

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