Law Commons^™

The Kids Are Not Alright: Negative Consequences Of Student Device And Account Surveillance, Ashley Peterson

Washington Law Review

In recent years, student surveillance has rapidly grown. As schools have experimented with new technologies, transitioned to remote and hybrid instruction, and faced pressure to protect student safety, they have increased surveillance of school accounts and school-issued devices. School surveillance extends beyond school premises to monitor student activities that occur off-campus. It reaches students’ most intimate data and spaces, including things students likely believe are private: internet searches, emails, and messages. This Comment focuses on the problems associated with off-campus surveillance of school accounts and school-issued devices, including chilling effects that fundamentally alter student behavior, reinforcement of the school-to-prison pipeline, …

Breaking Algorithmic Immunity: Why Section 230 Immunity May Not Extend To Recommendation Algorithms, Max Del Real

Washington Law Review Online

In the mid-1990s, internet experiences were underwhelming by today’s standards, despite the breakthrough technologies at their core. When a person logged on to the internet, they were met with a static experience. No matter who you were, where you were, or how you accessed a particular website, it rendered a consistent page. Today, internet experiences are personalized, dynamic, and vast—a far cry from the digital landscape of just a few decades ago. While today’s internet is unrecognizable compared with its early predecessors, many of its governing laws remain materially unaltered. In particular, section 230 of the Communications Act, which passed …

Reply Brief For Petitioners, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Brief For Petitioners, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Petition For A Writ Of Certiorari, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman, Daniel Weininger

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

News Reporting On Trump's Covid-19 Treatments: Should Broadcasters Have To Disclose Their Being Potentially Dangerous?, Dr. Joel Timmer

Washington Journal of Law, Technology & Arts

During the early months of the COVID-19 pandemic in 2020, President Trump touted a number of treatments that many medical professionals considered dangerous. These treatments include hydroxychloroquine and disinfectants, which if misused could cause a patient’s death. This prompted Free Press to file an emergency petition with the FCC, arguing that broadcasters who report on Trump’s claims about these treatments without highlighting their dangers could be in violation of the Commission’s broadcast hoax rule. Free Press also requested the FCC require that broadcasters include disclaimers when reporting on such claims. This article examines whether the broadcast hoax rule has been …

Harlem Shake Meets The Chevron Two Step: Net Neutrality Following Mozilla V. Fcc, Christopher R. Terry, Scott Memmel

Washington Journal of Law, Technology & Arts

In October 2019, the D.C. Circuit handed down its much-anticipated decision in Mozilla v. FCC, relying heavily on Chevron Deference and the Supreme Court’s 2005 Brand X decision. The per curiam opinion upheld large portions of the FCC’s 2018 Restoring Internet Freedom Order, but also undermined the FCC’s preemption of state law while also remanding issues related to public safety, pole attachments, and the Lifeline Program to the agency, assuring that the legal and policy battles over net neutrality will continue. This Article traces the history of the FCC’s efforts on net neutrality as it has moved in and out …

Radio Revolution: The Local Community Radio Act's Expansion Of Possibilities For Low-Power Fm Stations, Jeffrey M. Echert

Washington Journal of Law, Technology & Arts

This Article explores the struggle to establish low-power FM radio stations on airwaves already crowded with full-power stations. Historically, urban markets have provided few opportunities for low-power stations due to third-adjacent channel protections—there are only so many frequencies available in a given city. The Local Community Radio Act of 2010 gives new stations an advantage in the debate by eroding these protections. In October of 2013, the FCC opened the application window for new low-power stations—only the second window since the inception of low-power FM in 2001. During the window, the FCC received 2,800 applications, including eighty-one from Washington State. …

The Code-Based Interpretation Of Authorization: An Incomplete Picture, Nicholas R. Ulrich

Washington Journal of Law, Technology & Arts

The definition of authorization under the Stored Communications Act raises questions about implied authorization in situations where someone fails to secure an email account properly. The few cases that have addressed this issue under the federal act or its state equivalents have not created a bright-line rule. Instead, the question of authorization has been highly fact-dependent. Two leading interpretive theories have emerged on the question of authorization: the code-based theory and the trespass theory. While the code-based interpretation of authorization seems pleasing because it appears to provide highly predictive outcomes, it fails in some circumstances. This failure is especially obvious …

The Evolving Landscape Of Tcpa Consent Standards And Ways To Minimize Risk, Misa K. Bretschneider

Washington Journal of Law, Technology & Arts

Given the exponential growth in mobile phone usage, more businesses are adopting mobile communication strategies to engage with existing and potential customers. With 97% of all mobile marketing text messages being opened by their intended recipients, mobile text message marketing is both effective and lucrative. However, businesses must ensure that such messages comply with the Telephone Consumer Protection Act (TCPA), which generally prohibits sending unsolicited commercial text messages. Indeed, TCPA litigation has become the recent darling of class action lawyers due to uncapped statutory damages and is sure to increase with the heightened consent regulations promulgated by the Federal Communications …

Communications Privacy For And By Whom?, Ryan Calo

Articles

A response to Professor Orin Kerr's The Next Generation Communications Privacy Act, which makes a series of quiet assumptions, however, that readers may find controversial.

First, the Article reads as though ECPA exists only to protect citizens from public officials. According to its text and to case law, however, ECPA also protects private citizens from one another in ways any new act should revisit.

Second, the Article assumes that society should address communications privacy with a statute, whereas specific experiences with ECPA suggest that the courts may be better suited to address communications privacy—for reasons Professor Kerr himself offers. …

Aereo And Cablevision: How Courts Are Struggling To Harmonize The Public Performance Right With Online Retransmission Of Broadcast Television, Sam Méndez

Washington Journal of Law, Technology & Arts

Americans increasingly turn to the computer instead of the television to gain access to their favorite shows. With this in mind, Aereo allows its subscribers to stream broadcast television content to their computers, but does not compensate the broadcasters for these retransmissions. The broadcasters argue this violates their public performance right under the Copyright Act’s Transmit Clause, but because of Aereo’s curious technology platform, in which thousands of tiny antennas are each assigned to a unique subscriber, infringement is uncertain. The Supreme Court will soon hear American Broadcasting Companies, Inc. v. Aereo, Inc., arising out of the Second Circuit, …

Can You Hear Me Now? The Race To Provide America With Universal, High-Speed Wireless Coverage, Dina Neda Rezvani

Washington Journal of Law, Technology & Arts

As the United States becomes increasingly dependent on universal, high-speed wireless services, infrastructural limitations are producing tension. The interests of consumers, telecommunications companies, state and local authorities, and businesses, as well as national security, are all at stake. Yet legal uncertainty stemming from a split among federal circuit courts hampers the development of solutions. The courts diverge on the interpretation of a key provision of the Telecommunications Act (TCA), 47 U.S.C. § 332(c)(7)(B), that regulates wireless service providers’ ability to erect new towers. There is great need for a national standard to give mobile providers a uniform means of accommodating …

What Your Tweet Doesn't Say: Twitter, Non-Content Data, And The Stored Communications Act, Daniel Shickich

Washington Journal of Law, Technology & Arts

A federal district court in Virginia recently held that Twitter users have no privacy rights regarding non-content information associated with their use of Twitter. The court thus affirmed that the government may obtain Twitter users’ Internet Protocol (IP) addresses without notice to the users. The users in this case were alleged to be members of WikiLeaks. The government obtained an order of production in connection with grand jury proceedings, compelling Twitter to turn over IP address data to the government. After Twitter motioned to have the order unsealed, the alleged WikiLeaks members unsuccessfully attempted to intervene to quash the order …

Choose Your Words Wisely: Affirmative Representation As A Limit On § 230 Immunity, Jeffrey R. Doty

Washington Journal of Law, Technology & Arts

Since its enactment in 1996, § 230 of the Communications Decency Act has shielded Web site operators from liability arising out of third-party content. The statute preempts any claim that would treat the defendant as a “publisher” or “speaker” of that content, but recent cases suggest that a defendant’s own statements may constitute an independent source of liability beyond the scope of § 230. In Mazur v. eBay, a federal district court held that § 230 does not bar claims of fraudulent misrepresentation when a defendant has described a third party’s auctioning procedures as “safe.” More recently, the Ninth …

Inducement Or Solicitation? Competing Interpretation Of The "Underlying Illegality" Test In The Wake Of Roommates.Com, Jeffrey R. Doty

Washington Journal of Law, Technology & Arts

In Fair Housing Council of San Fernando Valley v. Roommates.com, the United States Court of Appeals for the Ninth Circuit held that a Web site operator loses the immunity granted by section 230 of the Communications Decency Act by materially contributing to the alleged illegality of its third-party content. Subsequent case law seems to reflect two different standards for determining when this “underlying illegality” test is satisfied. Most courts have adopted a narrow reading of Roommates.com, denying immunity only when a Web site has explicitly requested illegal content. In NPS LLC v. StubHub, Inc., however, a Massachusetts …

Text Message Monitoring After Quon V. Arch Wireless: What Private Employers Need To Know About The Stored Communications Act And An Employee's Right To Privacy, Jennifer Heidt White

Washington Journal of Law, Technology & Arts

In June 2008, the Ninth Circuit Court of Appeals held that public employees have a reasonable expectation of privacy in the content of text messages sent from employer-owned devices. The court concluded that the expectation of privacy arises vis-à-vis the text-message service provider, even where an employee has signed an explicit waiver of such an expectation. The decision, Quon v. Arch Wireless, raises difficult questions about the limitations placed on text-message service providers by the Stored Communications Act, and an employer’s ability to regulate and monitor employee use of technology in the workplace. Although Quon only applies to public …

Reach Out And Text Someone: How Test Message Spam May Be A Call Under The Tcpa, Daniel L. Hadjinian

Washington Journal of Law, Technology & Arts

The Arizona Court of Appeals recently found a business liable for sending an unsolicited advertisement email to a recipient’s wireless phone in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”). The court concluded that an email sent to a wireless phone constitutes a “call,” and noted that such a commercial call created the same concerns about consumer privacy that Congress intended to remedy with the TCPA. This finding is consistent with an earlier Federal Communications Commission ruling. Preliminary cases indicate that other courts may be willing to adopt a similar interpretation of the TCPA. In light of this …

Bigger Fish, Deeper Pockets: Business Blogs, Defamation And The Communications Decency Act, Emma Scanlan

Washington Journal of Law, Technology & Arts

Blogging is a form of online communication that encourages instantaneous postings and viewer comments. More and more businesses are creating blogs to talk about and promote their products and services. This article will focus on a business’ potential exposure to defamation liability stemming from content posted on a company-sponsored blog. The history of the Communications Decency Act in the courts indicates that companies will likely be immune from liability for defamation when the suit treats the company blog as the publisher of third party defamatory content. However, businesses that host blogs should be aware that this immunity may not extend …

When Is A Phone Call Not A Phone Call? Legal Issues Arising From Business Use Of Voip, Paula K. Royalty

Washington Journal of Law, Technology & Arts

The Voice over Internet Protocol allows telephone calls to be placed over the Internet instead of the Public Switched Telephone Network. VoIP did not exist before 1995. Now market research predicts that by 2007, 90 percent of enterprises with multiple locations will start switching to VoIP, and it will account for 75 percent of all world voice traffic. This article examines current legal developments that impact business use of VoIP, including the increased business records retention requirements of recent federal laws, proposed new federal eavesdropping rules, and an unsuccessful legal challenge by a state public utility commission to regulate VoIP …

Can Law Firms Spam?, Kevin Michael

Washington Journal of Law, Technology & Arts

The CAN-SPAM Act of 2003 presents a compliance problem for law firms that issue periodic newsletters to clients or prospective clients. While the Act does not expressly include such newsletters, nor define commercial advertisement in a manner that suggests newsletters will be included, the advisory opinions from state ethics boards suggest that newsletters are advertisements. Arguments can be made that newsletters to current clients are not advertisements. However, given the low cost of compliance with the Act, firms should treat these newsletters as commercial advertisements and adhere to the provisions of the Act.

Fair And Reasonable Compensation Means Just That: How § 253 Of The Telecommunications Act Preserves Local Government Authority Over Public Rights-Of-Way, Jennifer Amanda Krebs

Washington Law Review

Section 253(c) of the 1996 Telecommunications Act expressly preserves local government authority to require fair and reasonable compensation from telecommunications providers for use of public rights-of-way. Although local government authority to require compensation for franchises is based in state law, some courts have overlooked state law when evaluating the validity of franchise fees. In addition, courts have interpreted § 253(c) narrowly, allowing local governments to recover only direct costs. This narrow interpretation of § 253(c) contradicts its text and legislative history, as well as analogous United States Supreme Court precedent. Further, this interpretation could lead to unconstitutional results, by allowing …

Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest

Washington Law Review

In Hazelwood School District v. Kuhimeier, the U.S. Supreme Court held that public school administrators can restrict expression in school-sponsored forums in a manner reasonably related to legitimate pedagogical concerns. Regulating First Amendment rights in any public forum usually requires that no point of view be suppressed in favor of its counterpoint, but the Hazelwood Court omitted the viewpoint-neutrality requirement from its holding. While the Sixth, Ninth and Eleventh Circuits continue to require viewpoint-neutral regulation of school-sponsored speech, the First and Third Circuits interpret Hazelwood as abrogating the viewpoint-neutrality requirement in school-sponsored forums. This Comment argues in favor of …

Hanging Up On Commercial Speech: Moser V. Fcc, Paul S. Zimmerman

Washington Law Review

The Ninth Circuit Court of Appeals in Moser v. FCC upheld the constitutionality of provisions in the Telephone Consumers Protection Act which prevent the commercial use of devices that deliver a pre-recorded sales message to home telephones. This Note examines the history of the U.S. Supreme Court's treatment of commercial speech and argues that the Ninth Circuit decision failed to apply criteria reflective of the Court's conception of the significant role played by commercial speech in our economy and society.

Are Oliver Stone And Tom Clancy Journalists? Determining Who Has Standing To Claim The Journalist's Privilege, Kraig L. Baker

Washington Law Review

Most circuits recognize a qualified privilege that provides a partial First Amendment shield for journalists to protect the confidentiality of their sources and materials. Few courts, however, discuss the scope of the class protected by this privilege. This Comment examines who has traditionally been part of the protected class and explores the trends and concerns of courts in granting standing. This Comment also recommends a framework that courts can use to determine whether to extend the journalist's privilege to new formats of communication and applies this framework to two examples.

Aid Or Obstruction? Government Regulation Of Cable Television Meets The First Amendment—Preferred Communications, Inc. V. City Of Los Angeles, 754 F.2d 1396 (9th Cir.), Affirmed In Part And Remanded, 54 U.S.L.W. 4542 (U.S. June 3, 1986) (No. 85-390), Robert G. Mitchell

Washington Law Review

In Preferred Communications, Inc. v. City of Los Angeles, the Ninth Circuit became the first circuit to limit, on first amendment grounds, a city's ability to deny a cable television company access to a local market. The Supreme Court's resolution of issues raised in Preferred Communications will have far-reaching impact, particularly with regard to the government's power to minimize the impact of cable television systems on government property and eliminate economic waste through duplicative service. This Note will examine the Ninth Circuit's use of the public forum doctrine in determining Los Angeles' power to restrict the use of its utility …

Antitrust And Nonmarket Goods: The Supreme Court Fumbles Again—National Collegiate Athletic Association V. Board Of Regents, 104 S. Ct. 2948 (1984), Jonathan E. Seib

Washington Law Review

In National Collegiate Athletic Association v. Board of Regents, the Supreme Court held that the NCAA's regulations restricting television broadcasts of college football games violated section one of the Sherman Antitrust Act. The result stemmed primarily from the Court's conclusion that the regulations did not promote their asserted purposes. However, the crucial aspect of the opinion is that, contrary to what precedent would suggest, the Court determined that the NCAA's purposes were legitimate in the first place. This Note addresses the question of why the NCAA Court reasoned the way it did and examines the means by which it arrived …

Qualified Common Law Privilege For News Reporters In Criminal Cases—State V. Rinaldo, 102 Wn. 2d 749, 689 P.2d 392 (1984), Susan Ward

Washington Law Review

In State v. Rinaldo, the Washington Supreme Court extended the news reporter's qualified common law privilege to criminal cases. This extension will adequately protect most confidential information held by reporters. In some cases, however, defendants will be able to defeat the qualified privilege announced in Rinaldo. The Washington courts should then construe article 1, section 5 of the Washington State Constitution to require in camera inspection of the information sought. The trial judge should order disclosure only upon concluding that the defendant's interest in obtaining the information outweighs the news reporter's interest in confidentiality.

Fair Trial And Free Press—Washington Conditions Media Access To The Courtoom—Federated Publications, Inc. V. Swedberg, 96 Wn. 2d 13, 633 P.2d 74 (1981), Cert. Denied, 102 S. Ct. 2257 (1982), Lynne Adrienne Chafetz

Washington Law Review

During a prosecution for attempted murder, the trial judge determined that detailed reporting of the pretrial suppression hearing would jeopardize the defendant's right to a fair trial. Judge Swedberg therefore conditioned the media's attendance on their agreement to abide by the 1974 Washington State Bench-Bar-Press Guidelines. Federated Publications, publisher of the Bellingham Herald, refused to sign the agreement and refused to allow its reporters to attend solely in a nonprofessional capacity. It argued that conditioning media attendance on compliance with the Bench-Bar-Press Guidelines constituted a prior restraint and that the trial judge exceeded his power by excluding nonsigning media representatives. …