Law Commons^™

Cyber-Terrorism: Finding A Common Starting Point, Jeffrey T. Biller

Jeffrey T Biller

Attacks on computer systems for both criminal and political purposes are on the rise in both the United States and around the world. Foreign terrorist organizations are also developing information technology skills to advance their goals. Looking at the convergence of these two phenomena, many prominent security experts in both government and private industry have rung an alarm bell regarding the potential for acts of cyber-terrorism. However, there is no precise definition of cyber-terrorism under United States law or in practice among cyber-security academicians. The lack of a common starting point is one of the reasons existing law fails to …

Broadcasting Licenses: Ownership Rights And The Spectrum Rationalization Challenge, J. Armand Musey Cfa

J. Armand Musey, CFA

This Article examines the showdown between television broadcast- ers and the government in light of the FCC’s plan to reallocate cur- rently licensed broadcast spectrum to signifcantly higher value mobile broadband use. The government seeks to do so in an economically, socially and legally effcient manner, and has indicated that it seeks a reallocation process that is voluntary for broadcasters. Nonetheless, any spectrum reallocation proceeding raises the question of whether, and to what extent, television broadcasters ultimately possess rights to licensed spectrum, and what type of compensation, if any, they would be owed if the FCC takes their spectrum licenses …

Crowdsourcing Indie Movies, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

Crowdsourcing Indie Movies

Henry H. Perritt, Jr.

Abstract

Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …

It's About Time: Privacy, Information Life Cycles, And The Right To Be Forgotten, Meg Leta Ambrose

Meg Leta Ambrose

The current consensus is that information, once online, is there forever. Content permanence has led many European countries, the European Union, and even the United States to establish a right to be forgotten to protect citizens from the shackles of the past presented by the Internet. But, the Internet has not defeated time, and information, like everything, gets old, decays, and dies, even online. Quite the opposite of permanent, the Web cannot be self-preserving. One study from the field of content persistence, a body of research that has been almost wholly overlooked by legal scholars, found that 85% of content …

Disaggregating Disasters, Ronnell Andersen Jones

RonNell Andersen Jones

In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of non-war emergency situations. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying …

The Large Immortal Machine And The Ticking Time Bomb, Susan Landau

Susan Landau

The 1994 Communications Assistance for Law Enforcement Act (CALEA) requires that digitally switched communications networks carrying voice be designed to accommodate (legally authorized) wiretaps. Since the law's passage, there have been a number of breaches in networks with CALEA-type switches. Despite the fact that CALEA is an "architected security breach," the Federal Communications Commission, whose role it is to promulgate CALEA requirements, the agency does not require any type of security testing or threat modeling for the switches. In this paper, I discuss the implications of the law to switch design, the breaches that have occurred, and what changes the …

Does The Communications Act Of 1934 Contain A Hidden Internet Kill Switch?, David W. Opderbeck

David W. Opderbeck

A key area of debate over cybersecurity policy concerns whether the President should have authority to shut down all or part of the Internet in the event of a cyber-emergency or cyber-war. The proposed Cybersecurity Act of 2009, for example, contained what critics derided as an Internet “kill switch.” The current iteration of a comprehensive cybersecurity reform bill, the Cybersecurity Act of 2012, opts for a soft public-private contingency plan model instead of a kill switch. But the kill switch may yet live. Sponsors of the present legislation have argued that Section 606 of the Communications Act of 1934 already …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

Religion And The Equal Protection Clause, Steven G. Calabresi, Abe Salander

Steven G Calabresi

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter …

First Amendment, Fourth Estate & Hot News: Misappropriation Is Not A Solution To The Journalism Crisis, Joseph A. Tomain

Joseph A Tomain

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. …

A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden

Derigan Silver

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …

Uncertainty As Enforcement Mechanism: The New Expansion Of Secondary Copyright Liability To Internet Platforms, John Blevins

John F. Blevins

This article examines the role that legal uncertainty plays as a copyright enforcement mechanism against Internet platforms. In recent years, Internet platforms have faced a new wave of copyright enforcement actions arising from their users’ activity. These actions include both civil secondary liability claims and public enforcement actions such as domain name seizures and criminal prosecution. Critically, copyright owners and the government do not necessarily need to prevail in these actions. Instead, the proceedings can be effective so long as they impose sufficient costs upon Internet platforms. In this respect, prevailing is less important than obtaining statutory and doctrinal constructions …

The New News: Challenges Of Monetization, Engagement, And Protection Of News Organizations' Online Content, Christine Katherine Lesicko

Christine K Lesicko

As news organizations continue to struggle with their business models and ways to best employ new technology, advertising and subscription revenues continue to fall or remain stagnant and layoffs continue to rise. This study examines potential ways for news organizations to both protect their content from unwanted piracy and monetize content in order to continue to produce quality and timely news. This paper explores the history of news and protections given to news content by Congress and the courts. The study goes on to examine court cases that influenced the current legal landscape of content protection for news organizations. The …

A Right To Speak And Spend: Citizens United And Its Consequences For Objective Journalism, Michael Ellement

Michael Ellement

• Article puts forth two concerns for the future of journalism following the Supreme Court's decision in Citizens United v. F.E.C. First, Citizens United blurred the line as to what the "press" is. Prior to Citizens United, press entities were traditionally exempt from campaign finance regulations because of their status as non-partisan information sources. This gave the press a unique status to participate in political process not enjoyed by other groups. Such a distinction has been eviscerated by Citizens United. All corporations now have the equal right to disseminate unlimited amounts of advocacy for a candidate or political position. Second, …

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

News Value, Islamophobia, Or The First Amendment, Why And How The Philadelphia Inquirer Published The Danish Cartoons, Robert Kahn

Robert Kahn

The typical framing of the United States in the Danish cartoon controversy is driven by the refusal of most papers to republish the cartoons. On this view, American journalists, unlike their European counterparts, focused narrowly on the cartoons' "news value" which--even at the papers that published the cartoons--ruled out the anti-Muslim stereotypes that accompanied the running of the cartoons in Denmark and Europe.

This paper puts this frame to the test by looking at the debate that unfolded after the Philadelphia Inquirer ran the turban cartoon. While editor Amanda Bennett defended her decision as "what newspapers do," a detailed review …

Where The Federalist Approach Makes No Sense, Recent Developments Call For Reform Of Federal Gaming Laws, Yannick Adler

Yannick Adler

Recent developments in mobile technology (marketing and simple broadcasting) call for a change in the patch work approach of American gaming laws. Federal action is becoming inevitable. Recent court cases and out of court settlements show that substantial questions of interstate sweepstakes’ law remain unsettled. Where mobile technology neither cares about state borders nor about specific state laws it will be impossible to keep mobile sweepstakes from traveling through the country, just as a participant carries his cell phone across the border. The problem is intensified by the variance in defining common terms as lottery, sweepstakes, and contests, where a …

The Large Immortal Machine And The Ticking Time Bomb, Susan Landau

Susan Landau

In 1994 Congress passed the Communications Assistance for Law Enforcement Act (CALEA). In many ways a rather extraordinary law, CALEA puts the government in charge of determining interception standards for telephone switches. Under CALEA, switches in use were to be retrofitted to accommodate the new requirement. That there were long-term consequences of building backdoors into long-lived electronic switching equipment were essentially ignored. That lapse is increasingly problematic. The possibility that security threats would develop against the telecommunications infrastructure itself does not appear to have been discussed during CALEA’s passage. The seriousness of the security lapse has become apparent with During …

Pitfalls And Promises Of Social Media And Mobile Lawyering, Jonathan I. Ezor

Jonathan I. Ezor

No abstract provided.

The Questionable Effect Of Informal And Instantaneous Electronic Communications On The Validity Of “No Oral Modification” Clauses: Are Texts, Tweets, And E-Mail Destroying The Sanctity Of Contract Law?, Diana Ovsepian

Diana Ovsepian

This Article provides a comprehensive analysis of the effect of informal electronic communications on contract modification law. The technological explosion of communications in the past few years has created a society that is unquestionably dependent on e-mail, text messages, instant messages, tweets and the like, as the way to keep in touch with one another. Both personally and professionally, individuals take advantage of these mediums to convey communications instantaneously and to stay in the loop. However, even with all of their advantages, these new mediums create novel questions in the realm of contract law. As modern businesses shift toward utilizing …

Go To Our Website For More (Of The Same): Reassessing Federal Policy Towards Newspapers Mergers And Cross Media Ownership And The Harm To Localism, Diversity And The Public Interest, Jason Zenor

Jason Zenor

Newspapers are workhorse of local news industry and this information is important in order to have an informed citizenry. But, the conventional wisdom is that newspapers are an endangered species and that something drastic needs to be done if this form of media is going to survive. Many proactive solutions have been forwarded such as charging for online content, using tablet and smartphone technology to publish newspapers and making newspapers more assessable to younger and more diverse generations. Another more conceding solution is to allow for greater relaxation on newspapers mergers and cross media ownership rules. But, this solution would …

Twibel Law: What Defamation And Its Remedies Look Like In The Age Of Twitter, Ellyn M. Angelotti

Ellyn M Angelotti

In six years, the Twitter audience has quickly grown to 140 million users who can instantly publish to a global audience. The informal nature of conversations on Twitter makes it a ripe environment for the spreading of rumors and potential falsehoods. While a few Twibel suits have been brought to the forefront, the courts have yet to rule on a case in the United States. This article presents a hypothetical situation where an influential Twitter user posts false content about a local restaurant that rapidly spreads online. This results in the restaurant's demise. The defamed party considers bringing a defamation …

Uses And Abuses Of Cyberspace, Andrew D. Murray

Professor Andrew D Murray

No abstract provided.

How The Traditional Property Rights Model Informs The Broadcast Television Spectrum Rationalization Challenge, J. Armand Musey Cfa

J. Armand Musey, CFA

This paper examines the prospective role of zoning rights and eminent domain in the Federal Communication Commission’s (“FCC”) challenge of reallocating underutilized television broadcast spectrum for use in significantly higher value mobile broadband applications. The government must reallocate the spectrum in an economically and legally efficient manner, balancing the interests of the politically powerful broadcasters and those of society as a whole. Recently, the government has decided to explore ways to incentivize the broadcasters to voluntarily return their spectrum licenses. From a strictly legal perspective, the broadcasters have a relatively weak claim to property rights. However, the government has indicated …

Do Facebook And Twitter Make You A Public Figure?: How To Apply The Gertz Public Figure Doctrine To Social Media, Matt Lafferman

Matt Lafferman

In the last three years alone, defamation suits against internet users have risen by 216 percent due to the recent discovery that most homeowner’s insurance policies cover libel liability. This increase, which signals an almost inevitable rise in defamation suits, will eventually force courts to face the challenge of applying the Gertz public figure doctrine to social media. Courts face a particular dilemma when applying the doctrine to social media. The Supreme Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the …

Can A Computer Intercept Your Email?, Bruce E. Boyden

Bruce E. Boyden

In recent years it has become feasible for computers to rapidly scan the contents of large amounts of communications traffic to identify certain characteristics of those messages: that they are spam, contain malware, discuss various products or services, are written in a particular dialect, contain copyright-infringing files, or discuss symptoms of particular diseases. There is a wide variety of potential uses for this technology, such as research, filtering, or advertising. But the legal status of automated processing, if it is done without advance consent, is unclear. Where it results in the disclosure of the contents of a message to others, …

The Mixed Blessing Of A Deregulatory Endpoint For The Public Switched Telephone Network, Rob Frieden

Rob Frieden

Receiving authority to dismantle the wireline public switched telephone network (“PSTN”) will deliver a mixture of financial benefits and costs to incumbent carriers. Even if these carriers continue to provide basic telephone services via wireless facilities, they will benefit from substantial relaxation of common carriage duties, no longer having to serve as the carrier of last resort and having the opportunity to decide whether and where to provide service. On the other hand, incumbent carriers may have underestimated the substantial financial and marketplace advantages they also will likely lose in the deregulatory process. This paper will identify the potential problems …

“Technopanics, Threat Inflation, And The Danger Of An Information Technology Precautionary Principle”, Adam Thierer

Adam Thierer

Fear is an extremely powerful motivational force. In public policy debates, appeals to fear are often used in an attempt to sway opinion or bolster the case for action. Such appeals are used to convince citizens that threats to individual or social wellbeing may be avoided only if specific steps are taken. Often these steps take the form of anticipatory regulation based on the precautionary principle.

Such “fear appeal arguments” are frequently on display in the Internet policy arena and often take the form of a full-blown “moral panic” or “technopanic.” These panics are intense public, political, and academic responses …

Yes We Can!: The Significance Of The Citizens United Decision, The Role Of Citizen Journalists And The Social Network In Political Campaign Finance, Melissa J. Roca

Melissa J. Roca

Yes We Can!: The Significance of the Citizens United Decision, the Role of Citizen Journalists and the Social Network in Political Campaign Finance. Part I: Introduction The explosion of social networks such as Facebook and Twitter has added a new dimension to the exchange and distribution of information. The dissemination of news, formerly discharged by those with professional and ethical training, is now occurring between citizens with no formal media training. These new “reporters” on the social network,” broadly referred to as “citizen journalists,” are members of the public that play a contributory role in researching, reporting, and publicizing news …

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster