Law Commons^™

Reviving Negotiated Rulemaking For An Accessible Internet, Julie Moroney

Michigan Law Review

Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking …

Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas

Michigan Technology Law Review

Policymakers are faced with a vexing problem: how to increase competition in a tech sector dominated by a few giants. One answer proposed and adopted by regulators in the United States and abroad is to require large platforms to allow consumers to move their data from one platform to another, an approach known as data portability. Facebook, Google, Apple, and other major tech companies have enthusiastically supported data portability through their own technical and political initiatives. Today, data portability has taken hold as one of the go-to solutions to address the tech industry’s competition concerns.

This Article argues that despite …

The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz

Michigan Technology Law Review

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play …

Symmetry And (Network) Neutrality, Tejas N. Narechania

Michigan Law Review Online

In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

You Can’T Say That!: Public Forum Doctrine And Viewpoint Discrimination In The Social Media Era, Micah Telegen

University of Michigan Journal of Law Reform

The growing prevalence of privately-owned social media platforms is changing the way Americans and their governments communicate. This shift offers new opportunities, but also requires a reinterpretation of the First Amendment’s proscription of government limitations of speech. The public forum doctrine and its proscription of viewpoint discrimination seem particularly stretched by the digital revolution and the development of social media. In ongoing cases, litigants and courts have invoked the doctrine to limit the government’s ability to ‘block’ those who comment critically on government pages—much to the chagrin of those who note the private status of the companies hosting the pages …

The Commodification Of Cryptocurrency, Neil Tiwari

Michigan Law Review

Cryptocurrencies are digital tokens built on blockchain technology. This allows for a product that is fully decentralized, with no need for a third-party intermediary like a government or financial institution. Cryptocurrency creators use initial coin offerings (ICOs) to raise capital to build their tokens. Cryptocurrency ICOs are problematic because they do not fit neatly within either of two traditional categories—securities or commodities. Each of these categories has their own regulatory agency: the SEC for securities and the CFTC for commodities. At first blush, ICOs seem to be a sale of securities subject to regulation by the SEC, but this is …

Do We Need Help Using Yelp? Regulating Advertising On Mediated Reputation Systems, David Adam Friedman

University of Michigan Journal of Law Reform

Yelp, Angie’s List, Avvo, and similar entities enable consumers to access an incredibly useful trove of information about peer experiences with businesses and their goods and services. These “mediated reputation systems,” gatherers and disseminators of consumer peer opinions, are more trusted by consumers than traditional commercial channels. They are omnipresent, carried everywhere on mobile devices, and used by consumers ready to transact.

Though this information is valuable, a troubling conflict emerges in its presentation. Most of these reputation platforms rely heavily on advertising sales to support their business models. This reliance compels these entities to display persuasive advertising right along …

Can You Diagnose Me Now? A Proposal To Modify The Fda’S Regulation Of Smartphone Mobile Health Applications With A Pre-Market Notification And Application Database Program, Stephen Mcinerney

University of Michigan Journal of Law Reform

Advances in mobile technology continually create new possibilities for the future of medical care. Yet these changes have also created concerns about patient safety. Under the Food, Drug, and Cosmetic Act, the Food and Drug Administration (FDA) has the authority to regulate a broad spectrum of products beyond traditional medical devices like stethoscopes or pacemakers. The regulatory question is not if the FDA has the statutory authority to regulate health-related software, but rather how it will exercise its regulatory authority. In September 2013, the FDA published Final Guidance on Mobile Medical Applications; in it, the Agency limited its oversight to …

Network Neutrality: Verizon V. Fcc, Anna S. Han

University of Michigan Journal of Law Reform Caveat

The Federal Communications Commission (“FCC”) is once again locking horns with the broadband behemoth, Verizon, over the issue of network neutrality. Although this conflict between the government and corporate giants is far from new, recent events have forced courts to give it close scrutiny. Given the explosive pace at which technology has expanded and permeated citizens’ daily lives, the judgments rendered have greater significance now than ever before.

Technology Convergence And Federalism: The Case Of Voip Regulation, Daniel A. Lyons

University of Michigan Journal of Law Reform Caveat

The Vermont Supreme Court may soon consider whether federal law permits the Public Service Board to regulate certain voice-over-internet-protocol (VoIP) services. Across the Hudson, Governor Andrew Cuomo recently sought to bar the New York Public Service Commission from adopting similar regulations. And these states are not alone: from Maine to Florida, several states are considering whether their jurisdiction over traditional telephone service encompasses this new technology, through which nearly one-third of American landline households receive telephone service. If so, nationwide VoIP providers could face up to fifty new legal regimes with which they must comply before offering service. If not, …

Viewer Discretion Is Advised: Disconnects Between The Marketplace Of Ideas And Social Media Used To Communicate Information During Emergencies And Public Health Crises, Peter Maggiore

Michigan Telecommunications & Technology Law Review

In a sense, social media has become the ideal manifestation of the "Marketplace of Ideas" (hereinafter "Marketplace") that Chief Justice Oliver Wendell Holmes articulated. The Marketplace concept will be discussed in greater detail below, but in brief, it is the theory that truth will surface over falsehoods when all opinions and ideas are freely expressed, because the value or worth of that opinion or idea will be determined on the market of public opinion. Part I of this Note will examine the Marketplace concept through the works of various legal and philosophical theorists. Chief among them is Frederick Schauer's work …

Does Law Matter Online - Empirical Evidence On Privacy Law Compliance, Michael Birnhack, Niva Elkin-Koren

Michigan Telecommunications & Technology Law Review

Does law matter in the information environment? What can we learn from the experience of applying a particular legal regime to the online environment? Informational privacy (or to use the European term, data protection) provides an excellent illustration of the challenges faced by regulators who seek to secure user rights and shape online behavior. A comprehensive study of Israeli website compliance with information privacy regulation in 2003 and 2006 provides insights for understanding these challenges. The study examined the information privacy practices of 1360 active websites, determining the extent to which these sites comply with applicable legal requirements related to …

Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons

University of Michigan Journal of Law Reform

This Article critically examines the division of regulatory jurisdiction over telecommunications issues between the federal government and the states. Currently, the line between federal and state jurisdiction varies depending on the service at issue. This compartmentalization might have made sense fifteen years ago, but the advent of technology convergence has largely rendered this model obsolete. Yesterday's telephone and cable companies now compete head-to-head to offer consumers the vaunted "triple play" of voice, video, and internet services. But these telecommunications companies are finding it increasingly difficult to fit new operations into arcane, rigid regulatory compartments. Moreover, services that consumers view as …

Wireless Net Neutrality Regulation And The Problem With Pricing: An Empirical, Cautionary Tale, Babette E.L. Boliek

Michigan Telecommunications & Technology Law Review

I present here a unique empirical analysis of the consumer welfare benefits of prior regulation in the mobile telecommunications industry. In particular, I analyze the relative consumer benefits of state rate regulation and federal entry regulation. The institution of filing requirements and FTC review and approval of various consumer pricing regimes is highly analogous to the consumer price controls imposed by various state level public utility commissions in the past. Furthermore, the imposition of a zero-price rule is analogous to past rate regulation; in particular it is similar to past wholesale regulation with its underlying principles of open access and …

States, Markets, And Gatekeepers: Public-Private Regulatory Regimes In An Era Of Economic Globalization, Christopher M. Bruner

Michigan Journal of International Law

This Article illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between State and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse-the "public-private gatekeeper."

Not From Concentrate? Media Regulation At The Turn Of The Millennium M Arch 18-19, 2005, Journal Of Law Reform

University of Michigan Journal of Law Reform

Transcript from a March 2005 Symposium held in the University of Michigan Law School, Hutchins Hall.

A Shadow Government: Private Regulation, Free Speech, And Lessons From The Sinclair Blogstorm, Marvin Ammori

Michigan Telecommunications & Technology Law Review

Because of the economics of online information, thousands who do not know each other can band together in hours, without previous organizational coordination or any persistent central coordination, to affect others and conform society to their idea of the social good. This changes the dynamic of political action and the ability of unaffiliated, lone individuals to respond to social acts where government and the market have not. Through ad hoc volunteerism, the Sinclair participants produced regulatory action against a private party with whom they were not transacting--because they believed government failed to do so. Although ad hoc volunteerism has received …

Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca Bignami

Michigan Journal of International Law

The perspective offered by this Article is twofold. The emergence of transgovernmental networks gives rise to two questions, one causal and the other normative. First, how do we explain transnational cooperation through networks? Why do governments and regulators choose to establish networks rather than retain virtually limitless discretion over policymaking, conditioned only by international legal obligations? Based on the author’s examination of the records of the intergovernmental negotiations on the Data Protection Directive, this Article concludes that one precondition for fettering national discretion through networks is common preferences among governments on the substance of the policy to be administered. Compared …

Application Of The Public-Trust Doctrine And Principles Of Natural Resource Management To Electromagnetic Spectrum, Patrick S. Ryan

Michigan Telecommunications & Technology Law Review

The Electromagnetic spectrum is among our most valuable natural resources. Yet while the past few decades have seen a rich body of environmental law develop for other natural resources, this movement has largely passed over the electromagnetic spectrum. This Article argues that to remedy that situation, the public-trust doctrine, which is now a cornerstone of modern environmental law, should be extended to the electromagnetic spectrum. This extension would not be a leap: the public-trust doctrine has already been used to guarantee the public access to various bodies of water (not just navigable water), and to protect recreational lakes and beaches, …

Regulating Speech Across Borders: Technology Vs. Values, Matthew Fagin

Michigan Telecommunications & Technology Law Review

The disfavored status within international law of unilateral state-based regulations that target extraterritorial actors arises from the inherent challenges such actions represent to state sovereignty. In the context of the Internet, the complexity of choice-of-law analysis is heightened: regulations imposed by one state have the potential to effectively block communications to citizens of all states and undermine the conflicting regulatory aims of neighboring states. Early legal commentators built upon this cascading chilling effect of state-based regulation to proclaim both the futility and illegitimacy of state-based action in the online environment. Subsequent scholars have demonstrated the commensurability of state-based online regulation …

Proactive Legislation And The First Amendment, Stuart Minor Benjamin

Michigan Law Review

It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind. The solution, according to some, is for the government to act proactively - before a harm has arisen, so that the government …

Telemedicine: Rx For The Future Of Health Care, Susan E. Volkert

Michigan Telecommunications & Technology Law Review

Quite simply, telemedicine symbolizes and catalyzes the clash between the reality of our legal and political approach to health care and the American dream of bringing health care to all patients. Telemedicine, like our health care delivery systems, is regulated by many layers of government. Unlike other issues, telemedicine cuts through and challenges the traditional controls of access and cost. As such, telemedicine is a microcosm of our health care delivery system and a lens through which one may analyze the obstacles to access in the current system. This article examines these issues, proposes that telemedicine's goal should be to …

Climbing The Walls Of Your Electronic Cage, Steven Hetcher

Michigan Law Review

Space. The final frontier. Not so, say the doyennes of the firstgeneration Internet community, who view themselves as the new frontiersmen and women staking out a previously unexplored territory - cyberspace. Numerous metaphors in the Internet literature picture cyberspace as a new, previously unexplored domain. Parallels are frequently drawn to the American colonies, the Western frontier, or outer space. In Code: And Other Laws of Cyberspace, Lawrence Lessig says, "Cyberspace is a place. People live there." In this place, we will build a "new society" (p. 4). A sense of this background is helpful in appraising Lessig's claims. He argues …

Telecommunications In Transition: Unbundling, Reintegration, And Competition, David J. Teece

Michigan Telecommunications & Technology Law Review

The world economy is experiencing a technological revolution, fueled by rapid advances in microelectronics, optics, and computer science, that in the 1990s and beyond will dramatically change the way people everywhere communicate, learn, and access information and entertainment. This technological revolution has been underway for about a decade. The emergence of a fully-interactive communications network, sometimes referred to as the "Information Superhighway," is now upon us. This highway, made possible by fiber optics and the convergence of several different technologies, is capable of delivering a plethora of new interactive entertainment, informational, and instructional services that are powerful and user-friendly. The …

White House Electronic Mail And Federal Recordkeeping Law: Press "D" To Delect History, James D. Lewis

Michigan Law Review

This Note argues that federal recordkeeping law should promote the preservation of history above all other concerns. First, courts should construe and apply the recordkeeping statutes with this goal in mind. Second, Congress should amend the recordkeeping statutes to correct enforcement deficiencies that leave irresponsible recordkeeping practices unchecked and risk the loss of a historical record of White House decisionmaking. Finally, executive officials should adopt guidelines that identify and preserve historically significant materials regardless of the medium in which they are captured.

Part I of this Note examines the statutes that currently regulate the management and public disclosure of White …

Integrated Servies Digital Network: Issues And Options For The World's Future Communications Systems, A. M. Rutkowski

Michigan Journal of International Law

There has been virtually no public discussion of the significant public policy issues raised because of the intimidating nature of network engineering which forms the basis for nearly all the current dialogue. This paper discusses current ISDN developments, and sets forth an analytical framework within which these issues may be discussed.

The International Application Of The Second Computer Inquiry, Robert M. Frieden

Michigan Journal of International Law

This article chronicles the FCC's attempt to confront the confluence of telecommunications and data processing technologies by fashioning a regulatory scheme designed primarily for the United States. The Commission has chosen to apply this scheme, without significant qualification, internationally. Given the different objectives and structure of United States and foreign communications industries, the FCC's system cannot be transplanted abroad without prior consultation and substantial modification. After reviewing the international problems created by the Commission's application abroad of its newly developed scheme, this article concludes with recommendations for resolving these conflicts that currently threaten the well-being of carriers, customers, and international …