Digital Repository @ Maurer Law

If a Right to Health Care is Argued in the Supreme Court, Does Anybody Hear it?

W. David Koeninger — Mon, 17 Jun 2013 13:20:15 PDT

Invisible Ink: Intersectionality and Political Inquiry

Dara Z. Strolovich — Mon, 17 Jun 2013 13:00:22 PDT

Rights of Belonging for Women

Rebecca E. Zietlow — Mon, 17 Jun 2013 13:00:19 PDT

Affirmative Action and Academic Freedom: Why the Supreme Court Should Continue Deferring to Faculty Judgments About the Value of Educational Diversity

Steve Sanders — Tue, 11 Jun 2013 18:05:09 PDT

Is the Antidiscrimination Project Being Ended?

Michael J. Zimmer — Fri, 07 Jun 2013 15:20:09 PDT

Masthead Vol.64 No.3 (2012)

Tue, 04 Jun 2013 07:51:00 PDT

An End to End-to-End? A Review Essay of Barbara van Schewick’s Internet Architecture and Innovation

Adam Candeub — Tue, 04 Jun 2013 07:50:58 PDT

Amidst much controversy, the FCC released its landmark "network neutrality" order in December 2010. This regulation prohibits Internet service providers, such as Verizon or Comcast, from discriminating in favor of traffic or content that they own or with which they are affiliated. Professor Barbara van Schewick's recently published book, Internet Architecture and Innovation, could not be timelier. Employing a variety of economic and technical arguments, van Schewick defends the type of regulation the FCC passed as necessary to preserve the Internet's potential for innovation. My central critique of Internet Architecture is its deployment of economic theories on one side of a highly politicized debate, rather than using economic analysis to elevate that debate. Van Schewick relies on an impressive array of economic approaches but fails to acknowledge their ambiguity. Her argument strings together a succession of questionable economic generalizations, thereby greatly weakening her conclusions. Van Schewick is not alone in using economics in this way. Too many law professors rely on theoretical models but ignore their limiting assumptions, failing to sort through the massive ambiguity inherent in their application. A close examination of van Schewick's argument, therefore, leads to general recommendations for legal interdisciplinary research methodology.

Should Cyber Exploitation Ever Constitute a Demonstration of Hostile Intent That May Violate UN Charter Provisions Prohibiting the Threat or Use of Force?

Anna Wortham — Tue, 04 Jun 2013 07:50:57 PDT

More and more, the United States and other countries rely on complex infrastructures that are primarily controlled by information technology. Although extremely destructive cyber threats and attacks against nations are a reality, the laws governing cyber exploitation have not kept pace with this threat. Because the United States and other nations may use cyber capabilities offensively as well as defensively, it is important that the laws for engaging in such cyber conflict be well defined. Currently, it seems unlikely that cyber exploitation can ever be regarded as a threat or use of force under the UN Charter because it is typically regarded as espionage, which is permissible internationally. This Note first analyzes whether cyber exploitation can constitute a threat or use of force, and then analyzes whether that should be the case. While the Note concludes that cyber exploitation likely does not constitute a threat or use of force under current law, it finds that, it should constitute such a threat or use of force in some cases. Even in situations where it does not rise to the level of threat or use of force, cyber exploitation should still be prohibited internationally because it can be so much more destructive than traditional espionage.

Reforming Retransmission Consent

Meg Burton — Tue, 04 Jun 2013 07:50:56 PDT

Under the retransmission consent regulations of the 1992 Cable Act, broadcasters and cable providers must negotiate with one another for permission to retransmit a broadcast signal over a cable system. While the majority of such negotiations are resolved amicably, there has been a growing trend of negotiations resulting in signal blackouts that harm consumers. In March 2010, cable providers filed a Petition for Rulemaking with the FCC arguing that the current regulations are outdated and asking that the FCC alter the regulations to curb harmful negotiation tactics employed by broadcasters. Broadcasters replied that the retransmission consent scheme is working as intended and that the FCC and Congress should resist requests to get involved in the negotiations. The FCC responded with a Notice of Proposed Rulemaking seeking comment on four possible rule changes that might solve the dispute. This Note explores the contours of the current dispute over retransmission consent regulations and examines each side's proposed solutions. This Note then recommends that the best solution to both level the playing field between the parties and also end harmful signal blackouts is a combination of both adopting some of the FCC's proposals and legislative action providing for interim carriage and mandatory arbitration mechanisms.

Behavioral Advertising: The Cryptic Hunter and Gatherer of the Internet

Joanna Penn — Tue, 04 Jun 2013 07:50:55 PDT

In an era where three out of every four Americans have Internet access, the term "surfing" has transformed from riding waves into running the risk of having private information gathered, stored, and disseminated-all without the user's knowledge or permission. This new found online practice, known as "behavioral advertising," is a veritable goldmine for those companies that know the game. But will the FTC or Congress soon make new rules concerning how to play? This Note begins by explaining the differences between behavioral targeting and retargeting and the techniques that the two methods use to collect data. This Note then explores 'the various areas where unbridled behavioral tracking can cause harm, and concludes with a discussion on how to protect Internet users effectively, whether through regulation, or legislation at a federal level, or through increased transparency and communication by retailers to Internet users.

BART Cell Phone Service Shutdown: Time for a Virtual Forum?

Rachel Lackert — Tue, 04 Jun 2013 07:50:53 PDT

The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain the public order is not simple under normal circumstances. On August 11, 2011, San Francisco's Bay Area Rapid Transit ("BART") created a paradigm embodying the very essence of this problem by shutting down cell phone and Internet service to prevent citizens from organizing and planning a protest. Both the constitutional and telecommunications law implications of BART's cell phone and Internet shutdown beg for analysis and reform, especially in an age of rapidly advancing technology. This Note analyzes the legal implications of BART's shutdown, and sets forth a proposal to conform current technology and the law by recognizing the principle of a "virtual forum" comprised of the Internet and telecommunications networks.

The FCC’s Sponsorship Identification Rules: Ineffective Regulation of Embedded Advertising in Today’s Media Marketplace

Jennifer Fujawa — Tue, 04 Jun 2013 07:50:52 PDT

In the contemporary media landscape, the advertising industry is increasingly relying on embedded advertising to reach consumers. The scope of embedded advertising in today's marketplace raises significant concerns and complicated First Amendment questions regarding the type of regulation needed to suit the interests of all parties concerned. In 2008, the FCC released a joint Notice of Intent/Notice of Proposed Rulemaking entitled Sponsorship Identification Rules & Embedded Advertising, which requested comments on the FCC's proposed changes to its sponsorship identification rules in light of this growing prevalence of embedded advertising. Yet, four years later, the FCC's sponsorship identification rules are exactly the same. This Note argues that the negative consequences stemming from embedded advertising far outweigh the potential negative consequences of increased regulation, and that revising the sponsorship identification rules are necessary to better serve societal interests.

Law and the Open Internet

Adam Candeub et al. — Tue, 04 Jun 2013 07:50:50 PDT

The FCC has issued a new set of Internet access regulations and policies (namely Preserving the Open Internet Broadband Industry Practices, Report and Order, FCC 10-201, rel. Dec. 23, 2010), which would prohibit broadband service providers like AT&T or Comcast from discriminating against unaffiliated content providers. The FCC's proceedings, and the network neutrality debate, concentrate on two economic questions: (1) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access, and (2) how to preserve the Internet's capacity for creativity and innovation. Yet despite the prominence of economics in the debate, economic theory cannot answer these questions. The debate also misapplies normative, legal concepts of discrimination and equal treatment onto Internet traffic management engineering. These concepts worked in a circuit switched telephone network in which equality can exist at switch points, but make little sense in the packet-switched Internet in which equality of outcomes of Internet experience is what matters. With its narrow focus, the debate has also missed the fact that actual Internet disputes, such as the BitTorrent-Comcast Order, involve many legal concerns, such as privacy, that have little to do with discrimination as such. We, therefore, argue for a "bottom up" approach to regulation, analogous to fair use in copyright law, with case specific adjudications creating a common law of acceptable network practice.

WikiLeaks and the First Amendment

Geoffrey R. Stone — Tue, 04 Jun 2013 07:50:47 PDT

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish such classified information. In the context of these actors, the Act violates the First Amendment unless, at the very least, the government can establish that dissemination of the classified information poses a clear and present danger of grave harm to the nation.

Editor's Note

Sarah L. Kellogg — Tue, 04 Jun 2013 07:50:45 PDT

Masthead Vol.64 No.2 (2012)

Mon, 03 Jun 2013 14:10:09 PDT

From Betamax to YouTube: How Sony Corporation of America v. Universal City Studios, Inc. Could Still Be a Standard for New Technology

Veronica Corsaro — Mon, 03 Jun 2013 14:10:07 PDT

Internet technological innovations, particularly the development of Peer-to-Peer ("P2P") networks and the proliferation of user-generated content sites, have introduced considerable challenges for the application of copyright law and infringement liability. The response from the courts and Congress has been mixed, with severe legal curtails being applied to P2P technology while usergenerated content sites have been afforded a level of protection against infringement claims as part of the Digital Millennium Copyright Act's section 512 "safe harbor" provisions. However, these provisions have raised concerns about the issue of secondary copyright liability, a matter that has still been left undefined. This Note will argue that the substantial noninfringing use standard enumerated in the case of Sony Corp. of America v. Universal City Studios, Inc. could provide a guide for developing a standard for secondary liability of user generated content sites.

Survival of the Standard: Today’s Public Interest Requirement in Television Broadcasting and the Return to Regulation

Drew Simshaw — Mon, 03 Jun 2013 14:10:06 PDT

The notion that broadcasters must broadcast in the public interest has always been a requirement; exactly how this requirement is met has taken many forms. This Note examines the history of the public interest requirement in broadcasting-from vagueness to regulation to good faith and presumptions of compliance-and considers the appropriate direction for the public interest requirement's future. The deregulation of the 1980s served a valuable purpose at the time by lifting burdens and sparking innovation. It is time to examine those innovative methods of ascertaining the needs of our communities and providing desired programming, in order to determine ways in which we can increase the accountability of individual stations and improve their communication with the public. We find ourselves at a place in history where it is necessary to implement certain sensible regulations in order to ensure the preservation of the public interest standard.

Consumer Watchdog: The FCC’s Proposed Rulemaking to Help Consumers Avoid Bill Shock

Cameron Robinson — Mon, 03 Jun 2013 14:10:06 PDT

This Note discusses the proposed rulemaking by the FCC in order to empower consumers against "bill shock." Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system.

Wiretapping the Internet: The Expansion of the Communications Assistance to Law Enforcement Act to Extend Government Surveillance

Christa M. Hibbard — Mon, 03 Jun 2013 14:10:05 PDT

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and to word processing software that allows communication through Internet access. The unique architecture of the Internet lends it to particular vulnerabilities with the consequence that an expansion of CALEA to all Internet communications could create problems regarding the innovative nature of the Internet, national security, free speech, and privacy. This Note will examine the competing interests related to expanding CALEA and will weigh the potential benefits and consequences of CALEA. The Note concludes that substantially more information is needed to justify a change of the law.