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Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire
Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire
Duke Law & Technology Review
The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional …
Regulating Data As Property: A New Construct For Moving Forward, Jeffrey Ritter, Anna Mayer
Regulating Data As Property: A New Construct For Moving Forward, Jeffrey Ritter, Anna Mayer
Duke Law & Technology Review
The global community urgently needs precise, clear rules that define ownership of data and express the attendant rights to license, transfer, use, modify, and destroy digital information assets. In response, this article proposes a new approach for regulating data as an entirely new class of property. Recently, European and Asian public officials and industries have called for data ownership principles to be developed, above and beyond current privacy and data protection laws. In addition, official policy guidances and legal proposals have been published that offer to accelerate realization of a property rights structure for digital information. But how can ownership …
Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett
Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett
Duke Law & Technology Review
Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection. Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …
Websites As Facilities Under Ada Title Iii, Ryan C. Brunner
Websites As Facilities Under Ada Title Iii, Ryan C. Brunner
Duke Law & Technology Review
Title III of the Americans with Disabilities Act requires public accommodations—private entities that offer goods or services to the public—to be accessible to individuals with disabilities. There is an ongoing debate about whether Title III applies to websites that offer services to the public, but this debate may be resolved in the coming years by litigation or Department of Justice regulations. Assuming for the sake of argument that Title III will eventually be applied to websites, the next inquiry is what that application should look like. The regulatory definition of “facilities” should be amended to include nonphysical places of public …
Schools, Speech, And Smartphones: Online Speech And The Evolution Of The Tinker Standard, Aleaha Jones
Schools, Speech, And Smartphones: Online Speech And The Evolution Of The Tinker Standard, Aleaha Jones
Duke Law & Technology Review
Under the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, public schools may only restrict student speech where the speech is reasonably forecasted to cause a “substantial and material disruption.” With online forums calling into question who may control speech and forecast its impact, the circuit courts have granted public schools broad authority to monitor, and punish, their students for online activity that occurs off-campus. The Supreme Court recently declined the opportunity to reverse this disturbing trend by denying certiorari for Bell v. Itawamba County. As a result, questions remain unanswered regarding students’ right to free …
Sharing Is Airing: Employee Concerted Activity On Social Media After Hispanics United, Ryan Kennedy
Sharing Is Airing: Employee Concerted Activity On Social Media After Hispanics United, Ryan Kennedy
Duke Law & Technology Review
Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has been extended in cases such as Lafayette Park Hotel to workers outside the union context. Starting in 2005, the National Labor Relations Board increasingly signaled to employers that concerted activity may take place on social media such as Facebook. However, the Board proper delivered its first written opinion articulating these rules in the 2012 case of Hispanics United of Buffalo, Inc. There, the …
Ensuring An Impartial Jury In The Age Of Social Media, Amy J. St. Eve, Michael A. Zuckerman
Ensuring An Impartial Jury In The Age Of Social Media, Amy J. St. Eve, Michael A. Zuckerman
Duke Law & Technology Review
The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions—the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct.
In this Article, we present informal survey data …
Privacy Expectations And Protections For Teachers In The Internet Age, Emily H. Fulmer
Privacy Expectations And Protections For Teachers In The Internet Age, Emily H. Fulmer
Duke Law & Technology Review
Public school teachers have little opportunity for redress if they are dismissed for their activities on social networking websites. With the exception of inappropriate communication with students, a school district should not be able to consider a public educator’s use of a social networking website for disciplinary or employment decisions. Insisting that the law conform to twenty-first century social norms, this iBrief argues that the law should protect teachers’ speech on popular social networking websites like Facebook and MySpace.
Who Owns The Virtual Items?, Leah Shen
Who Owns The Virtual Items?, Leah Shen
Duke Law & Technology Review
Do you WoW? Because millions of people around the world do! Due to this increased traffic, virtual wealth amassed in MMORPGs are intersecting in our real world in unexpected ways. Virtual goods have real-life values and are traded in real-life markets. However, the market for trading in virtual items is highly inefficient because society has not created property rights for virtual items. This lack of regulation has a detrimental effect not just the market for virtual items, but actually the market for MMORPGs. Assuming we want to promote the production of MMORPGs as a market, society requires a set of …
The Anonymous Poster: How To Protect Internet Users’ Privacy And Prevent Abuse, Scott Ness
The Anonymous Poster: How To Protect Internet Users’ Privacy And Prevent Abuse, Scott Ness
Duke Law & Technology Review
The threat of anonymous Internet posting to individual privacy has been met with congressional and judicial indecisiveness. Part of the problem stems from the inherent conflict between punishing those who disrespect one's privacy by placing a burden on the individual websites and continuing to support the Internet's development. Additionally, assigning traditional tort liability is problematic as the defendant enjoys an expectation of privacy as well, creating difficulty in securing the necessary information to proceed with legal action. One solution to resolving invasion of privacy disputes involves a uniform identification verification program that ensures user confidentiality while promoting accountability for malicious …
The Future Of “Fair And Balanced”: The Fairness Doctrine, Net Neutrality, And The Internet, Sasha Leonhardt
The Future Of “Fair And Balanced”: The Fairness Doctrine, Net Neutrality, And The Internet, Sasha Leonhardt
Duke Law & Technology Review
In recent months, different groups--pundits, politicians, and even an FCC Commissioner--have discussed resurrecting the now-defunct Fairness Doctrine and applying it to Internet communication. This iBrief responds to the novel application of the Doctrine to the Internet in three parts. First, this iBrief will review the history and legal rationale that supported the Fairness Doctrine, with a particular emphasis on emerging technologies. Second, this iBrief applies these legal arguments to the evolving structure of the Internet. Third, this iBrief will consider what we can learn about Net Neutrality through an analogy to the Fairness Doctrine. This iBrief concludes that, while the …
The U.S. On Tilt: Why The Unlawful Internet Gambling Enforcement Act Is A Bad Bet, Gerd Alexander
The U.S. On Tilt: Why The Unlawful Internet Gambling Enforcement Act Is A Bad Bet, Gerd Alexander
Duke Law & Technology Review
The United States federal government’s attempts to curb Internet gambling are beginning to resemble a game of whack-a-mole. The Unlawful Internet Gambling Enforcement Act of 2006 (the "UIGEA" or "Act") represents its most recent attack on Internet gambling. This iBrief first looks at U.S. attempts to limit Internet gambling and how those efforts have affected gambling law and business. It then discusses how the UIGEA works and highlights some of its major limitations. This iBrief argues that the UIGEA will not only fail to rein in online gambling, but that the U.S. federal government is treading an improvident course towards …
Taxation Of Virtual Assets, Scott Wisniewski
Taxation Of Virtual Assets, Scott Wisniewski
Duke Law & Technology Review
The development of vast social networks through Massively Multiplayer Online Role-Playing Games has created in-game communities in which virtual assets have real-world values. The question has thus arisen whether such virtual assets are legal subjects of taxation. This iBrief will detail and discuss the various exclusions to taxable income, and analyze their application to the possibility of creating potential tax liability based on in-kind exchanges of virtual assets.
Fcc Regulation: Indecency By Interest Groups, Patricia Daza
Fcc Regulation: Indecency By Interest Groups, Patricia Daza
Duke Law & Technology Review
FCC regulations are among the most controversial administrative law regulations because of their impact on broadcast television. This iBrief analyzes the history of FCC regulation and highlights the problems associated with the current model. Applying theories of economics, this iBrief proposes solutions to the current problems of selective enforcement and vagueness in enforcement. While the Supreme Court recognized that FCC regulation is necessary, it is also necessary for there to be a clearer model for how the agency should be run.
Is The Internet A Viable Threat To Representative Democracy?, David M. Thompson
Is The Internet A Viable Threat To Representative Democracy?, David M. Thompson
Duke Law & Technology Review
The Internet, despite its relatively recent advent, is critical to millions of Americans’ way of life. Although the Internet arguably opens new opportunities for citizens to become more directly involved in their government, some scholars fear this direct involvement poses a risk to one of the Constitution’s most precious ideals: representative democracy. This iBrief explores whether the constitutional notion of representation is vulnerable to the Internet’s capacity to open new vistas for a more direct democracy by analyzing statistics and theories about why voters in the United States do or do not vote and by examining the inherent qualities of …
T-Mobile Usa Inc. V. Department Of Finance For Baltimore City: What The Latest Salvo In Disproportional Cellular Phone Taxation Means For The Future, Daniel P. Slowey
T-Mobile Usa Inc. V. Department Of Finance For Baltimore City: What The Latest Salvo In Disproportional Cellular Phone Taxation Means For The Future, Daniel P. Slowey
Duke Law & Technology Review
Seventeen percent of the average monthly cellular phone bill in 2004 was comprised of federal, state, and local taxes. As the number of wireless subscribers across the nation continues to increase, states, cities, and counties are increasingly seizing upon cellular taxation as a panacea for budget shortfalls. The Maryland Tax Court’s recent decision in T-Mobile USA, Inc. v. Department of Finance for Baltimore City held state and county taxes on the sale of individual cellular lines as legal excise taxes rather than illegal sales taxes. This iBrief will highlight the origins of telecommunications taxation, examine the ruling in T-Mobile in …
When Is Employee Blogging Protected By Section 7 Of The Nlra?, Katherine M. Scott
When Is Employee Blogging Protected By Section 7 Of The Nlra?, Katherine M. Scott
Duke Law & Technology Review
The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how the National Labor Relations Board and the courts should address the unique features of employee blogs.
The End Of Net Neutrality, William G. Laxton Jr.
The End Of Net Neutrality, William G. Laxton Jr.
Duke Law & Technology Review
In 2005, the FCC changed the competitive landscape of the high-speed Internet access industry by classifying both DSL and cable modem service as "information services." While many hail this move as a victory for competition and free markets, others fear the ruling could jeopardize the future of the Internet. This iBrief examines the potential end of "net neutrality" and concludes that new federal regulations are unnecessary because antitrust laws and a competitive marketplace will provide consumers with sufficient protection.
Shielding Journalist-“Bloggers”: The Need To Protect Newsgathering Despite The Distribution Medium, Laura Durity
Shielding Journalist-“Bloggers”: The Need To Protect Newsgathering Despite The Distribution Medium, Laura Durity
Duke Law & Technology Review
The failure to agree on a sufficiently narrow definition of "journalist" has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of "journalist" can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits …
When Discrimination Is Good: Encouraging Broadband Internet Investment Without Content Neutrality, Christopher E. Fulmer
When Discrimination Is Good: Encouraging Broadband Internet Investment Without Content Neutrality, Christopher E. Fulmer
Duke Law & Technology Review
Cable television and traditional telephone companies are increasingly offering the same set of services: telephone, television, and broadband Internet access. Competition between these two types of companies would ordinarily require them to improve these services, but unless broadband providers have the ability to discriminate on the basis of content and charge Internet video providers that compete with their own video services, the growth of the Internet will be stunted, as broadband providers will not improve the capacity of their networks.
Fighting Terrorism In An Electronic Age: Does The Patriot Act Unduly Compromise Our Civil Liberties?, Christopher P. Raab
Fighting Terrorism In An Electronic Age: Does The Patriot Act Unduly Compromise Our Civil Liberties?, Christopher P. Raab
Duke Law & Technology Review
The USA PATRIOT Act is tremendously controversial, both lauded by law enforcement and decried by civil liberties groups. This iBrief considers two of the Act's communications monitoring provisions, concluding that each compromises civil liberties to a greater degree than is necessary to combat terrorism. Accordingly, Congress should revise the USA PATRIOT Act, bringing it into line with the Constitution.
Completing The Connection: Achieving Universal Service Through Municipal Wi-Fi, K. Joon Oh
Completing The Connection: Achieving Universal Service Through Municipal Wi-Fi, K. Joon Oh
Duke Law & Technology Review
The federal universal service scheme is designed to ensure that everyone has affordable access to advanced telecommunications and information services. Despite the development of cost-effective technologies that drastically reduce the cost of telephone services vis-à-vis the Internet and Wi-Fi networks, federal regulations generally prevent municipalities or private companies from providing wireless Internet access with universal service funds. Federal regulations have replaced technology costs, lack of business incentives, and consumer affordability as the primary barrier to universal service. Competitive neutrality, the pro-competitive and technology-neutral approach to universal service funding, must be fully embraced in order to empower local communities with the …
Buggy Whips And Broadcast Flags: The Need For A New Politics Of Expression, Garrett Levin
Buggy Whips And Broadcast Flags: The Need For A New Politics Of Expression, Garrett Levin
Duke Law & Technology Review
In response to growing fears from the entertainment industry over online file-sharing of valuable content, the Federal Communications Commission ("FCC") enacted sweeping regulations over the production of electronic devices in the name of protecting digital television broadcasts. Although the FCC's "broadcast flag" regulation was struck down on jurisdictional grounds, Hollywood has not given up the push for strict control. If Hollywood successfully acquires broadcast flag protection there could be far-reaching implications for innovation and development of new digital technologies. While content providers have important reasons to protect copyrighted material, there is too much at stake to merely acquiesce to their …
Regulating Indecency: The Federal Communication Commission’S Threat To The First Amendment, Reed Hundt
Regulating Indecency: The Federal Communication Commission’S Threat To The First Amendment, Reed Hundt
Duke Law & Technology Review
This paper is adapted from a talk given by the author at Duke University School of Law on April 6, 2005. The author argues that the Federal Communication Commission's recent crackdown on television indecency poses a significant threat to First Amendment protections by (1) limiting television viewers' freedom of choice and (2) implying the possibility of punishment for failure to cooperate with the political objectives of the governing party.
Crossed Signals In A Wireless World: The Seventh Circuit’S Misapplication Of The Complete Preemption Doctrine, Matthew J. Kleiman
Crossed Signals In A Wireless World: The Seventh Circuit’S Misapplication Of The Complete Preemption Doctrine, Matthew J. Kleiman
Duke Law & Technology Review
As the number of wireless telephone users continues to proliferate, so does the number of lawsuits against wireless service providers. While consumers seek to utilize various consumer-friendly state law causes of action, the wireless industry continues to push for a uniform federal regulatory regime. Ambiguous language in the Federal Communications Act of 1934 ("FCA") and disagreement among the federal circuits has led to much confusion over whether state law claims affecting wireless rates and market entry are removable to federal court by way of "complete preemption." This iBrief argues that FCA's preemption power is limited by its savings clause, failure …
Wireless Local Number Portability: New Rules Will Have Broad Effects, Stephen M. Kessing
Wireless Local Number Portability: New Rules Will Have Broad Effects, Stephen M. Kessing
Duke Law & Technology Review
After a delay of over seven years, wireless local number portability rules ("WLNP") finally went into effect on November 24, 2003. These rules, promulgated by the Federal Communications Commission, allow wireless subscribers to change service providers within a given location while retaining the same phone number. The rules also allow consumers to transfer a land-based telephone number to a cellular provider. These new choices will likely have a significant impact on the wireless industry and increase competition in an already intense playing field. This iBrief provides a summary of the new rules, looks at the history and litigation, and predicts …
Investigating Terrorism: The Role Of The First Amendment, Amy E. Hooper
Investigating Terrorism: The Role Of The First Amendment, Amy E. Hooper
Duke Law & Technology Review
This iBrief discusses the constitutionality of a government policy enacted shortly after September 11, 2001 that denies public access to deportation hearings in cases allegedly bearing some connection to terrorism. This ibrief discusses two Circuit Courts of Appeals decisions on the issue and argues that this policy is unconstitutional.
The Fcc Under Attack, Kerri Smith
The Fcc Under Attack, Kerri Smith
Duke Law & Technology Review
The Federal Communications Commission voted in a contentious three-two split to relax rules limiting ownership of TV stations, radio stations, and newspapers. Among its critics are members of Congress who may pass legislation reinstating the old rules. Others will likely file suit against the FCC in the hopes of overturning the decision. This article will discuss the current debate over media deregulation in light of the recent FCC order. Specifically, this ibrief focuses on concerns over media consolidation in the wake of the 'Clear Channelization' of American radio, and addresses the contrasting depictions of the current media landscape by advocates …
The Fcc And Congress Should Consider Consumer Rights When Making The Transition To Dtv, Frank Ing-Jye Chao
The Fcc And Congress Should Consider Consumer Rights When Making The Transition To Dtv, Frank Ing-Jye Chao
Duke Law & Technology Review
This ibrief discusses the copyright issue surrounding the transition into Digital Television. It proposes that the Federal Communications Commission should balance the copyright interests of all parties involved in the DTV transition. Creators of informative and entertaining works must be rewarded with incentives to create further works. Such incentives necessarily involve copyright protection for these content holders. Just as the rights of content holders should be protected, the public's right to access information and to freely express ideas needs to remain protected. Copyright laws, specifically the fair use doctrine, must be allowed to stand firm while maintaining flexibility in order …
Do Not Advertise: The Current Fight Against Unsolicited Advertisements, Dannielle Cisneros
Do Not Advertise: The Current Fight Against Unsolicited Advertisements, Dannielle Cisneros
Duke Law & Technology Review
Have you ever received a phone call from a telemarketer during dinner? Do e-mails entitled "Protect Your Computer Against Viruses for $9.95" or "GET A FREE PASS TO THOUSANDS OF XXX SITES" annoy you? Are you tired of watching advertisements that continue after the posted start time for a movie? Many Americans are irritated with the amount of daily interruptions caused by the current lack of advertising regulations. In some instances, the advertisers shift their marketing costs to unwilling e-mail users or moviegoers. This article focuses on unsolicited communications and potential solutions to the seemingly endless problem of spam.