Law Commons^™

How The Washington State Supreme Court Wrongly Applied The Communications Decency Act In Village Voice, And What It Means For Internet Service Providers, Samuel J. Daheim

Washington Journal of Law, Technology & Arts

In passing the Communications Decency Act of 1996 (CDA), Congress sought to promote and protect the ever-evolving free market of voices and ideas available on the internet. In order to reach this end, section 230(c) of the CDA extends protection from liability to those who provide a means for disseminating speech on the web, dubbed by the statute as “interactive computer service providers” (ICSP). Section 230 protects ICSPs from liability for harm inflicted by content created and posted by third parties on their respective forums. This Article focuses on a 2015 Washington State Supreme Court decision, J.S. v. Village Voice …

Equitable Recovery For Ashley Madison Hack Victims: The Federal Trade Commission As Executor Of A Narrow Right To Be Forgotten In The United States, Mackenzie Olson

Washington Journal of Law, Technology & Arts

Events following the Ashley Madison data breach exposed the personal information of millions of users. Victims filed class action suits in multiple courts in the United States, seeking various forms of monetary and equitable relief. However, these plaintiffs have been unable to compel the removal of personal information from third-party Internet sites hosting the information previously circulated by hackers. Citizens of the European Union, by contrast, could likely compel the removal of such personal information. Unlike the United States, the European Union recognizes a “right to be forgotten”, which authorizes individuals to demand the removal of their personal information from …

Privacy Harmonization And The Developing World: The Impact Of The Eu's General Data Protection Regulation On Developing Economies, Tiffany Curtiss

Washington Journal of Law, Technology & Arts

Through strengthened third-party obligations for data protection, the European Union’s General Data Protection Regulation will export privacy norms. However, developing economies may want to consider a co-regulatory industry approach to data protection before adopting similar national legislation. The General Data Protection Regulation can be an ideal model for global harmonization of privacy laws, particularly for adoption among industries and willing participants. To benefit from a co-regulatory approach, however, a developing economy would need to invest in education and legal systems in order to capture the benefits of the growing e-commerce market that will undoubtedly be influenced by the General Data …

The Influence Of Special Interest Groups On Copyright Law And Policy—A Comparison Of The Legislative Processes In The United States And Switzerland, Michael P. Kunz

Washington Journal of Law, Technology & Arts

In April 2016, the Office of the United States Trade Representative placed Switzerland on the Watch List of its 2016 Special 301 Report, which contains an annual review of the state of intellectual property rights protection and enforcement in U.S. trading partners around the world. According to the Report, the decision to put Switzerland on the Watch List was premised on U.S. concerns regarding specific difficulties in Switzerland’s system of online copyright protection and enforcement, particularly the “Logistep” ruling issued by the Federal Supreme Court of Switzerland in 2010. Although the Swiss authorities have acknowledged the difficulties mentioned in the …

Legislative Solutions To Stingray Use: Regulating Cell Site Simulator Technology Post-Riley, Ada Danelo

Washington Law Review

In Riley v. California, the United States Supreme Court held that law enforcement must generally obtain a warrant before searching the contents of an individual’s cell phone. However, Riley did not address whether the warrant requirement extended to cell phone metadata, e.g. non-content information such as location information. This gap creates uncertainty as to whether law enforcement officers must obtain a warrant to use Cell Site Simulators, a portable technology that mimics a cell tower to get location information metadata from cell phones. Law enforcement has justified the warrantless gathering of cell site information under the third-party doctrine, which …

Thoughts On Treasury's White Paper On Eu State Aid, Jeffrey M. Kadet

Articles

The U.S. Department of the Treasury on August 24 issued a White Paper that expresses its concerns about the European Commission’s efforts to apply the European Union’s State aid restrictions to multinational enterprises’ profit-shifting structures. This article comments on two aspects of the white paper that are technically correct, but require a little more explanation for readers to understand their significance. These two aspects are:

First, the article clarifies that the general comments that the White Paper makes about “call[ing] into question the ability of Member States to honor their bilateral tax treaties” might be true, but the specifics of …

Annual Report, 2016, University Of Washington School Of Law

Tech Policy Lab

The Tech Policy Lab at the University of Washington has had an exciting third year! From organizing national and international policy fora to helping local authorities generate best practices, the Lab continues its record of rigorous, impactful research.

Effects Of Australia's Maal And Dpt On Internet-Based Businesses, Antony Ting, Tommaso Faccio, Jeffrey M. Kadet

Articles

Australia has received considerable attention as a result of its unilateral actions to discourage multinational profit shifting. Those actions include the 2015 enactment of the Multinational Anti-Avoidance Law and the Australian Treasury’s May 2016 proposal for a diverted profits tax. This article considers how those actions might affect non-Australian multinational entities that conduct internet platform services for, and earn revenues from, Australian customers if those MNEs take no action. It also reviews structural alternatives.

As will be seen from the example set out in the article, the Australian royalty withholding tax is a major portion of the possible tax increases …

Profit-Shifting Structures: Making Ethical Judgments Objectively, Part 2, Jeffrey M. Kadet, David Koontz

Articles

MNCs and their advisors have seemingly taken ethics out of the mix when considering the profit-shifting tax structures they have so prolifically and enthusiastically implemented over the past several decades. There may be a variety of reasons for this. First, U.S. tax law is a self-assessment system, meaning that in most cases taxpayers compute and pay tax without advance approval of their tax positions from the IRS. No third party technical test or propriety standard has to be passed on the front end for any tax strategy or structure. Second, direct personal benefits accrue to management and advisors from implementing …

Ocean Acidification And The Unfccc: Finding Legal Clarity In The Twilight Zone, Ellycia R. Harrould-Kolieb

Washington Journal of Environmental Law & Policy

Ocean acidification—the rise in ocean acidity due primarily to the absorption of carbon dioxide (CO₂) from the atmosphere—is often thought of as a consequence of climate change; however, it is a separate, albeit very closely related, problem. Despite their common driver, the processes and impacts of ocean acidification and climate change are distinct and it should not be assumed that policies intended to alleviate climate change will simultaneously benefit the oceans. Indeed, some proposed climate change policy interventions, such as geoengineering schemes or the reduction of non-CO₂ greenhouse gases, either do nothing to alleviate increasing ocean acidification …

Continuing To Lead: Washington State's Efforts To Address Ocean Acidification, Amanda M. Carr

Washington Journal of Environmental Law & Policy

The world’s oceans have become approximately thirty percent more acidic since the Industrial Revolution and are currently acidifying at a rate ten times faster than anything the earth has experienced over the last fifty million years. Washington State is undertaking a groundbreaking effort to address ocean acidification, a global issue that has serious implications for the world’s oceans, marine ecosystems, and the individuals and communities that depend upon the services that they provide. These localized actions, in isolation, will be insufficient to effectively combat and adapt to the acidification of marine waters. While acknowledging this generally accepted premise, Washington has …

Ocean Acidification As A Problem In Systems Thinking, Terrie Klinger, Jan Newton

Washington Journal of Environmental Law & Policy

The emerging problem of ocean acidification provides a clear signal that we need to think and act differently about our stewardship of the ocean, its resources, and the services it provides to society. No longer can we afford to address environmental problems in the ocean on a reductionist, case-by-case basis, because the number of problems requiring attention has grown so large that the problems now are stacked one on top of another. Moreover, many of these problems are growing rapidly; for example, the contemporary rate of ocean acidification exceeds that at any time in the past 300 million years. Nor …

Ocean Acidification Through The Lens Of Ecological Theory, Brian Gaylord Et Al.

Washington Journal of Environmental Law & Policy

Ocean acidification, chemical changes to the carbonate system of seawater, is emerging as a key environmental challenge accompanying global warming and other human-induced perturbations. Considerable research seeks to define the scope and character of potential outcomes from this phenomenon, but a crucial impediment persists. Ecological theory, despite its power and utility, has been only peripherally applied to the problem. Here we sketch in broad strokes several areas where fundamental principles of ecology have the capacity to generate insight into ocean acidification’s consequences. We focus on conceptual models that, when considered in the context of acidification, yield explicit predictions regarding a …

Ocean Acidification: The Other Co2 Problem?, Scott C. Doney, Victoria J. Fabry, Richard A. Feely, Joan A. Kleypas

Washington Journal of Environmental Law & Policy

Rising atmospheric carbon dioxide (CO₂), primarily from human fossil fuel combustion, reduces ocean pH and causes wholesale shifts in seawater carbonate chemistry. The process of ocean acidification is well documented in field data, and the rate will accelerate over this century unless future CO₂ emissions are curbed dramatically. Acidification alters seawater chemical speciation and biogeochemical cycles of many elements and compounds. One well-known effect is the lowering of calcium carbonate saturation states, which impacts shell-forming marine organisms from plankton to benthic molluscs, echinoderms, and corals. Many calcifying species exhibit reduced calcification and growth rates in laboratory experiments …

Ocean Acidification: Legal And Policy Responses To Address Climate Change's Evil Twin, Eric V. Hull

Washington Journal of Environmental Law & Policy

Much attention has been devoted to the problem of global climate change, but the effects of carbon dioxide on the world’s oceans has been largely underappreciated. Oceanic absorption of carbon dioxide is working fundamental changes on ocean chemistry, increasing the acidity of the oceans, and threatening the stability of the oceans’ ecosystems. The United States has responded to these emergent threats with a policy agenda heavily oriented toward data production, but light on action that might reverse the course of ocean acidification. This Article contends that this policy approach is ill-suited to the known risks of intensifying ocean acidification. The …

Federal Treaty And Trust Obligations, And Ocean Acidification, Robert T. Anderson

Washington Journal of Environmental Law & Policy

Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth’s oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many …

"Fed" Up With Acidification: "Trusting" The Federal Government To Protect The Tulalip Tribes' Access To Shellfish Beds, Jacqueline M. Bertelsen

Washington Journal of Environmental Law & Policy

Part I of this paper discusses the threat ocean acidification poses to the Tulalip Tribes’ ability to practice and preserve its way of life. Part II examines the laws and legal structures, especially the Clean Water Act, that can simultaneously protect the Tulalip Tribes’ right to harvest shellfish at “usual and accustomed” shellfish beds and the health of Puget Sound’s waters as a whole. Finally, Part III proposes actions that can be taken at the state, tribal, and federal levels. First, the Environmental Protection Agency (EPA) should develop criteria and water quality standards relevant to ocean acidification that can be …

Using The Clean Water Act To Tackle Ocean Acidification: When Carbon Dioxide Pollutes The Oceans, Miyoko Sakashita

Washington Journal of Environmental Law & Policy

Carbon dioxide is an invisible pollutant that threatens water quality and entire marine ecosystems. The oceans absorb carbon pollution from the atmosphere, which reacts with seawater causing it to become more acidic. Ocean acidification impairs the growth, survival and reproduction of marine animals, and if unabated will massively disrupt entire ecosystems. One of the most powerful tools that we have to combat ocean acidification is the Clean Water Act—a law that has successfully solved difficult water pollution problems for decades. This article will discuss how the Clean Water Act can be leveraged to address ocean acidification and to protect our …

Ten Ways States Can Combat Ocean Acidification (And Why They Should), Ryan P. Kelly, Margaret R. Caldwell

Washington Journal of Environmental Law & Policy

The ocean is becoming more acidic worldwide as a result of increasing atmospheric concentrations of carbon dioxide (“CO₂”) and other pollutants. This fundamental change is likely to have substantial ecological and economic consequences globally. In this Article, we provide a toolbox for understanding and addressing the drivers of ocean acidification. We begin with an overview of the relevant science, highlighting known causes of chemical change in the coastal ocean. Because of the difficulties associated with controlling diffuse atmospheric pollutants such as CO₂, we then focus on controlling smaller-scale agents of acidification, discussing ten legal and policy …

The Revival Of Climate Change Science In U.S. Courts, William H. Rodgers Jr., Andrea K. Rodgers

Washington Journal of Environmental Law & Policy

Science never has been the obstacle to the recognition of climate change. Since Arhennius did his original calculations in 1896, the scientific world was quite aware of the prospect that industrial-age levels of carbon dioxide pollution would result in increasing global temperatures and acidification of the world’s oceans. The brilliant—and striking—graphical display that we know today as the Keeling Curve started in 1957, and year after year it records the relentless upward march of these atmospheric pollutant loadings. Through the years, necessarily, a vast number of scientific warnings, publications, findings, and predictions would be offered to the public at large, …

Atmospheric Trust Litigation And The Constitutional Right To A Healthy Climate System: Judicial Recognition At Last, Mary Christina Wood, Charles W. Woodward Iv

Washington Journal of Environmental Law & Policy

This Article spotlights a recent Washington case, Foster v. Washington Department of Ecology, which breaks new judicial ground in forcing governments to control dangerous GHG emissions. The case is part of an urgent global litigation campaign known as Atmospheric Trust Litigation (ATL). The Article begins by summarizing the actions deemed necessary by scientists to avert climate catastrophe, and describes the ATL campaign that formed in response. Part II explains the public trust framework, which provides the legal foundation for this climate litigation. Part III examines the three stages of atmospheric trust cases and describes the litigation up until the …

Dealing With Ocean Acidification: The Problem, The Clean Water Act, And State And Regional Approaches, Robin Kundis Craig

Washington Journal of Environmental Law & Policy

Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity …

Profit-Shifting Structures: Making Ethical Judgments Objectively, Part 1, Jeffrey M. Kadet, David Koontz

Articles

MNCs and their advisors have seemingly taken ethics out of the mix when considering the profit-shifting tax structures they have so prolifically and enthusiastically implemented over the past several decades. There may be a variety of reasons for this. First, U.S. tax law is a self-assessment system, meaning that in most cases taxpayers compute and pay tax without advance approval of their tax positions from the IRS. No third party technical test or propriety standard has to be passed on the front end for any tax strategy or structure. Second, direct personal benefits accrue to management and advisors from implementing …

Petition For A Writ Of Certiorari. Lavigne V. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016 U.S. S. Ct. Briefs Lexis 3646, 2016 Wl 5929996, Eric Schnapper, Ruth W. Woodling

Court Briefs

No abstract provided.

Filling Holes In The Air: Why The Ninth Circuit In Pakootas V. Teck Cominco Should Decline To Open Up A New Hole In Coverage That Would Circumvent Cerla Arranger Liability For Sites Contaminated By Aerial Emissions, Frank Cioffi

Washington Journal of Environmental Law & Policy

In order to frame the legal controversy, Part II of this comment provides background information on the relevant provisions of CERCLA, RCRA, and the Clean Air Act, and presents a brief summary of the physical and legal history of the Teck Cominco smelter and the Upper Columbia River site. Part III of this comment analyzes the controversy by examining the statutes themselves, as well as recent developments in the case law regarding arranger liability. While the statutes and the case law establish liability on their own, Part III also looks to the legislative history and finds confirmation that Congress intended …

Constitutional Retroactivity In Criminal Procedure, Dov Fox, Alex Stein

Washington Law Review

The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as …

Judicial Lobbying, J. Jonas Anderson

Washington Law Review

Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done—not to mention little that could be done—to restrict judges from lobbying. Judicial lobbying occurs, in large part, when Congress …

Revisiting The Taxation Of Fringe Benefits, Jay A. Soled, Kathleen Delaney Thomas

Washington Law Review

The receipt of workplace fringe benefits has become increasingly ubiquitous. As a result of their employment, employees often receive a cornucopia of fringe benefits, including frequent-flier miles, hotel rewards points, rental car preferred status, office supply dollar coupons, cellular telephone use, home internet service, and, in some instances, even free lunches, massages, and dance lessons. Technological advances and workforce globalization are important contributory factors to the popularity of what were, until the turn of this century, previously unknown fringe benefits. In years past, taxpayers could readily turn to the Internal Revenue Code to ascertain the income tax effects and reporting …

State Equity Crowdfunding And Investor Protection, Christopher H. Pierce-Wright

Washington Law Review

Since Kansas enacted the first blue sky law in 1911, securities regulation has sought to protect investors from fraud and speculation. Historically, this meant precluding substantial numbers of small businesses from raising capital in the form of equity investments. In order to facilitate small-business capital formation, in 2012 the federal government passed the Jumpstart Our Business Startups Act (JOBS Act). Although Title III of the JOBS Act required the Securities and Exchange Commission to undergo rulemaking to allow for small-dollar equity investments, the agency dragged its feet. In the interim, states anxious to jumpstart their own economies took the initiative. …

Contents, Anon

Washington Journal of Environmental Law & Policy

No abstract provided.