Wednesday, April 30, 2014
To receive comments concerning its draft proposal on the Open Internet, the FCC has established a new "inbox," available through a link on this page. While reports are already surfacing concerning the contents of the proposal, the FCC will not consider the new rules until its meeting on May 15th. FCC Chair Tom Wheeler has already responded to comments about its content on the FCC Blog here. Here is the guide that the FCC has released concerning the Open Internet.
Here are some early reactions to and discussions of the proposal:
Tess Gerritsen, author of the novel Gravity, as well as the Rizzoli & Isles crime thrillers, is suing Warner Brothers for breach of contract, alleging that the studio failed to credit her when it released the Sandra Bullock vehicle, which carries the same name. Warner Brothers bought the rights to Ms. Gerritsen's book in 1999. Ms. Gerritson is not suing for copyright infringement. She wants 2.5 percent of the net profits from the film, which would total in the millions of dollars. Here is a link to the complaint, filed in the United States District Court for the Central District of California.
Tuesday, April 29, 2014
Richard D. Taylor, Pennsylvania State University, has published Metaphor as Policy: The Case of the 'Broadband Ecosystem'. Here is the abstract.
From the early days of the Internet, metaphors have been important in shaping how we think about it. The “Information Superhighway”; the “Web”; the “cloud”; “Tubes”, “Cyberspace”, among others. Such appellations may seem trivial, even jokey, but metaphors actually can pow-erfully influence how we think about something. Metaphors imply regulatory policies. If we say the Internet is like the electrical grid, that’s one thing; if we say it’s like a public bazaar that may have very different results in the way we think about its regulation.
A currently popular, perhaps even dominant, metaphor is that of the “ecosystem”, appearing var-iously as the ICT ecosystem, the Internet ecosystem and the broadband ecosystem. They all convey the image of things that are interconnected and interdependent. The embrace a world where multiple formerly independent industrial sectors are overlapping, at least at the margins, creating new “platforms” of good and services to be provided to consumers. What are often un-der-recognized are the long-term implications of adopting this metaphor.
It is now 18 years since the passage of the ’96 Telecommunications Act. It was a step in the long process of competition and consolidation, but hardly an endpoint. The “Internet” is mentioned only in two areas (e-rate and child protection). It could be argued its drafters were shortsighted, but it would have required a bold imagination to foresee how things have evolved since then. So what sort of policy/regulatory regime will be appropriate for 18 years into the future, 2032? Or even for 2025? We need to be prepared for substantial – but foreseeable – major changes.
The paper will build on the “broadband ecosystem” metaphor, looking forward to a time when the “Intercloud” and inter-cloud networks step into the dominant role; when there is no need to “log in” as the network increasingly becomes the environment in which we move; in which the dominant part of the broadband network is not the public Internet but private and public clouds; and in which artificial intelligence and big data combine to create an overall shared data envi-ronment for which we do not yet even have a common name.
Noting that the broadband network is much more than just the “Internet”, the paper will identify the key, forward looking policy issues: ecosystem/platforms vs. terminating access; scope of the broadband ecosystem; focus on innovation or competition; social interventions; and jurisdictional basis, scope and locus of regulatory authority. It will then review three primary forward-looking policy models (the platform model, the protocol layers model, and the policy space model) and evaluate how well they address these policy issues and lay the groundwork for the information environment of the future.
Download the paper from SSRN at the link.
Monday, April 28, 2014
Catherine Jasserand, University of Amsterdam Faculty of Law, has published Critical Views on the French Approach to 'Net Neutrality' at 16 Journal of Internet Law 18 (2013). Here is the abstract.
Discussions on net neutrality have started three years ago in France and find their roots in the discussions which occurred after the adoption of the revised European Telecoms Package. In 2007, the European Commission proposed to reform the 2002 European Telecoms Package to include, among others, provisions on net neutrality. According to the Impact Assessment accompanying the proposals of revision, the purpose was to avoid that network operators would unfairly discriminate content, services or customers. The original proposals contained a much stronger net neutrality policy that the one which was finally adopted by the European Parliament and Council in November 2009.
The adoption of the revised Telecoms Package opened the debate on the notion in France. In the three years’ time, the French Telecoms regulator published two reports (under the form of 10 nonbinding principles and a technical-economic analysis addressed to the Government and Parliament). The Government released two reports (a technical report and a more political report). Whereas Members of the French Parliament issued opinions as well as information reports on the notion and introduced two draft laws on the topic. This high volume of contributions shows that the topic has generated a lot of interest even if the discussions do not seem to have been conducted in a very consistent way. However they also show that the scope of the topic is not confined to one issue or field and goes much beyond a competition and telecommunications issue. It encompasses freedom of communication (with the right to access the Internet) and touches upon copyright law enforcement issues.
The purpose of the article is to reflect the complexities of the debate from a policy point of view without a specific focus on a sector, field or player. As the debate was born in France after the adoption of the revised European telecoms rules, it seems logical to structure the article around the implementation of these measures. But first, to understand the ins and outs of the topic, a description of the forms and origins of the concept is necessary.
Download the article from SSRN at the link.
Lili Levi, University of Miami School of Law, has published Taming the 'Feral Beast': Cautionary Lessons from British Press Reform. Here is the abstract.
As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20th Century regulation poorly fitted for the 21st Century’s evolving news ecosystem, the Royal Charter regime is little more than licensing by proxy. Half-hearted attempts to insulate it from political pressure fail to negate its predictable chilling effects. Indeed, those effects present a particularly grave threat today, when states obsessed with surveillance and security achieve aggressive information control and censorship through collusion with private parties. A bird’s eye view of British press regulation reveals a trifecta of meta-regulation, direct government censorship, and constraints on information access. The effects of Royal Charter regime, far from being limited to the UK, will be felt around the world.
Download the paper from SSRN at the link.
Raphael Cohen-Almagor, University of Hull, has published Press Self-Regulation in Britain – A Critique in volume 20 of Science and Engineering Ethics (2014). Here is the abstract.
This article reviews the history of press self-regulation in Britain, from the 1947 Ross Commission to the 2012 Leveson Inquiry Commission. It considers the history of the Press Council and the Press Complaints Commission (PCC), analysing the ways they developed, their work, and how they have reached their current non-status. It is argued that the existing situation in Britain is far from satisfactory, and that the press should advance more elaborate mechanisms of self-control, establishing a new regulatory body called the Public and Press Council that will be anchored in law, empowering the new regulator with greater and unprecedented authority, and equipping it with substantive sanctioning abilities. The Public and Press Council should be independent and effective, with transparent policies, processes and responsibilities. Its adjudication should be made in accordance with a written, detailed Code of Practice.
Download the article from SSRN at the link.
Thursday, April 24, 2014
Adam Candeub, Michigan State University College of Law, is publishing Digital Medicine, the FDA, and the First Amendment in the Georgia Law Review. Here is the abstract.
Digital medicine will transform healthcare more fundamentally than the introduction of anesthesia or the discovery of the germ basis of infectious disease. Inexpensive computerized DNA sequencers will allow practitioners to individualize drugs and treatments. Digitalization will "democratize medicine," enabling individuals to create and use their own medical data, even diagnose or treat themselves. Already, tens of thousands of "medical apps" are available for smartphones that can do everything from take echocardiograms, blood pressure, pulse, lung function, oxygenation level, sugar level, breathing rate and body temperature to diagnose skin cancer and analyze urine. Medical apps, aimed at practitioners but available all, such as Isabel, diagnose diseases.
In fall 2013, the Federal Drug Administration (FDA) has asserted regulatory authority over mobile medical applications and other digital medical services, threatening, to chill, if not, destroy this innovation — and guaranteeing lengthy, high profile litigation in the near future. This article argues that the FDA stands on firm legal ground regulating medical devices that invasively measure bodily functions or take physical specimens. On the other hand, the FDA’s exercise of jurisdiction over applications that simply process information, such as Isabel, or use approved medical devices to provide medical information, like 23andMe, a genome analysis firm which the FDA recently shut down in a high profile action, raise legal concerns. Because these medical applications simply process information, they stand beyond the FDA’s regulatory reach under the Food, Drug and Cosmetics Act and the Administrative Procedure Act.
This paper adds to the large debate on the First Amendment, information and computer code. Building on recent Supreme Court decisions, this paper shows how code and applications which create healthcare information are protected speech. Given digital applications’ capacity to produce pools of data which researchers can mine for clinical and epidemiological insights and given government funding of medical services, healthcare data is both scientific and political speech, deserving of full First Amendment protection.
Michal Buchhandler-Raphael, Washington and Lee University School of Law, is publishing Overcriminalizing Speech in volume 36 of the Cardozo Law Review. Here is the abstract.
Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.
This Article demonstrates that a significant portion of these endangerment crimes criminalizes various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes and possession crimes. The Article argues that in contrast with conventional wisdom’s assumption that the right to free speech is broadly protected under existing jurisprudence, much speech is currently overcriminalized under the endangerment justification. Free speech doctrines and criminal law are in tension with one another. While under its First Amendment jurisprudence the Court contracts government’s power to ban speech, criminal law constantly expands the scope of speech crimes.
The Article contends that existing doctrines attempting to explain this inconsistency fail to provide a principled explanation for the absence of First Amendment scrutiny from various types of speech crimes. To ameliorate this problem, the Article proposes a unified analytical framework for assessing when speech justifies criminalization and when it warrants constitutional protection. The proposal suggests that all speech crimes should be subject to constitutional scrutiny under free speech doctrine as well as to additional constraints stemming from criminal law theory. The Article provides several factors to guide this judicial inquiry into determining the scope of criminal bans on speech.
Download the article from SSRN at the link.
Fred Kennedy Nkusi, Independent Institute of Lay Adventists of Kigali (INILAK), has published Journalistic Privilege to Confidentiality Sources: Analysis of Rwanda's Media Law, in volume 1 of the Boston Unviersity International Law Journal (2014). Here is the abstract.
This Article examines the meaning of journalistic privilege to confidential sources in Rwandan legal context in comparison with international legal systems. The discussion focuses principally on Rwanda’s media regulatory framework, including the Code of ethics of professional journalists and other media practitioners, if the law recognizes the privilege to confidential sources of information and the kind of protection that journalists are entitled to. The Article also analyses the jurisprudence of international Courts (the ICTY and the ECtHR) as well as foreign media law. It further discusses who, between the journalists and their confidential sources (informants), is entitled to the protection. Finally, the Article suggests possible amendment of media law to meet certain threshold balancing the protection of issues of public serious concern as well as the right to confidential sources of information.
Download the article from SSRN at the link.
Wednesday, April 23, 2014
Amazon and HBO have signed a licensing deal to make HBO programming available exclusively on Amazon Prime beginning May 21st. Among the popular shows slated for release on Amazon Prime and Amazon Fire TV: Veep, The Newsroom, and Girls. Seasons for each show will be delayed three years after original airing on HBO. More here from Variety, here from The Hollywood Reporter.
Tuesday, April 15, 2014
A Milanese court has agreed that Silvio Berlusconi may serve a year of community service in lieu of four years in prison because of his age. The former Italian Prime Minister and owner of a media empire had been sentenced to four years for tax fraud. He is still banned from participating in politics for two years. More here from the Hollywood Reporter,
Monday, April 14, 2014
The Pulitzer Prize Board has named its winners for 2014. On the list: The Guardian US and the Washington Post won for public service, for coverage of the Edward Snowden story, the Boston Globe won the breaking news prize for its coverage of the Boston Marathon bombing, and the New York Times won in two categories: Breaking News Photography (Tyler Hicks) and Feature Photography (Josh Haner). The Tampa Bay Times won the award for Local Reporting (Will Hobson and Michael LaForgia).
D.C. Magistrate Judge Asks EFF, Feds For Further Assistance With Technical Issues In Cell Phone Disclosure Case
U.S. Magistrate Judge John Facciola has asked the Electronic Frontier Foundation to serve as amicus curiae in a case involving the federal government's request for the disclosure of historic cell site location information (CLSI). The judge noted that nearly 90 publicly available opinions exist on the issue and that these opinions "are impossible to reconcile." Therefore, he has asked the EFF and the federal government to "provide the Court with a list of specific topics, issues, or questions that will help it probe into the relevant factual issues." Read the ruling here.
Anti-stalking legislation in the UK - created by the Protection from Harassment Act 1997 (PHA) which had its legislative roots as an anti-Domestic Violence measure - has become a potent weapon in the privacy armoury of the royal family andcelebrity celebrities generally. This development has created inevitable Article 8 and Article 10 tensions. There is an unusual duality within this Act that allows for criminal prosecutions and civil actions - on what are essentially the same facts - to proceed in parallel.Download the article from SSRN at the link.
Much of the phone-hacking activity alleged against Rupert Murdoch’s News International daily and Sunday newspapers - currently being tried at the Old Bailey in London - could have been prosecuted under this Act. There is no clearly-articulated public interest defence within the Act. Queen Elizabeth II has, for the last five years, warned photographers and the UK’s media that she may use either the civil or criminal aspects of this law to enforce her privacy rights…and Harry Styles (of the boy band One Direction) has recently used the Act to keep paparazzi on scooters away from him. Restraining Orders can be imposed even when criminal prosecutions fail. English law has accommodated the privacy paradox (the more famous you are, the more you want your privacy) - both through legislative adjustments and developing case law - in flexible ways that have allowed the PHA’s remedies to mature potently over the last 15 years in line with the ECHR’s Article 8 and Article 10 tensions.
From starting life an anti-stalking measure it has become one of the weapons of choice for celebrities seeking to protect their privacy from the media and paparazzi….but it is not just a one-way street. Carina Trimingham, the bi-sexual partner of the disgraced former English Cabinet Minister and MP Chris Huhne - unsuccessfully used the Act to sue a national newspaper which repeatedly (over 250 times) mentioned her bi-sexuality in news articles about Chris Huhne. Issues within this Act straddle the borderline between Article 8 privacy rights and Article 10 rights to freedom of expression in ways which only celebrities and the media could have had the resources to develop and explore in English law.
From the Hollywood Reporter: Al-Jazeera America, launched last year, is laying off "dozens" of employees, mostly, it says, due to reorganzation. The network, in partnership with Time Warner Cable, is available in millions of US homes. More here on the network's history and brand from the Los Angeles Times.
Thursday, April 10, 2014
The Fifth Circuit has refused to grant a writ of mandamus allowing the Times-Picayune to keep private the names of anonymous individuals who commented on a 2008 article concerning Stacey Jackson, the former head of New Orleans Affordable Homeownership, a NOLA nonprofit, and an investigation into her tenure there. After her indictment, her attorney requested information concerning the identities of the posters. What makes the identities of the posters particularly vital to the defense is that there's some question about whether the anonymous commentators here might have been prosecutors or members of law enforcement. In March 2012 information surfaced that a former Assistant U.S. Attorney had been posting anonymously about another investigation, and he admitted he had posted anonymously about other cases. (There has been other fallout, including some that touched the prosecution of NOPD officers involved in the Danizer Bridge shootings, resulting in the grant of a new trial for the defendants).
The Times Picayune argued in its motion that requiring it to turn over the names of the commentators "insufficiently protects the right under the First Amendment to engage in anonymous speech." However, prosecutors in the case and Ms. Jackson's attorneys have argued that the comments might have been made by federal prosecutors prior to Ms. Jackson's indictment. The Fifth Circuit did not find that the trial court's balancing of the free speech rights of the commentators against the defendant's due process interests "was clearly and indisputably erroneous"; the information would be reviewed in camera.
U. S. District Judge Mary Ann Lemmon gave the paper until noon on April 10 to turn over the requested information.
Wednesday, April 9, 2014
Variety reports on the ongoing Senate Judiciary Committee hearings concerning the Comcast/Time Warner merger. Senator Al Franken (no stranger to the entertainment industry) had sharp questions for Comcast executive vice president David Cohen concerning possible increases in monthly consumer cable bills. CSPAN coverage here.
See coverage here of David Cohen's appearance on CSPAN's program The Communicators (aired March 27, 2014).
Tuesday, April 8, 2014
Timothy Zick, William & Mary Law School, has published Rights Speech as William & Mary Law School Research Paper No. 09-275. Here is the abstract.
Freedom of speech has a complex and dynamic relationship with a number of other constitutional rights. This Article discusses one aspect of that relationship. It identifies and analyzes laws and regulations affecting rights speech – communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about or concerning the right to abortion and the right to bear arms. In these areas, government frequently manages, structures, and limits how individuals discuss constitutional rights. For example, various laws compel physicians to convey information about abortion and its effects, restrict sidewalk counseling near abortion clinics, limit public and press access to gun records, and ban lobbying relating to gun control with government funds. The Article identifies rights speech as an important sub-class of political speech; discusses the various ways in which rights speech regulations affect constitutional rights discourse; examines the factors that have led governments to impose such regulations in the abortion and arms contexts; and identifies the First Amendment and other constitutional harms that flow from governmental regulation of rights speech. The Article closes with some thoughts regarding how we might ensure that the First Amendment continues to serve as an effective mediating mechanism in future debates about constitutional rights.
Download the paper from SSRN at the link.
James Allan, University of Queensland, T. C. Beirne School of Law, has published Hate Speech Law and Disagreement as University of Queensland TC Beirne School of Law Research Paper No. 14-15 and in Constitutional Commentary. Here is the abstract.
In this Constitutional Commentary review piece, Allan considers Jeremy Waldron's arguments for hate speech laws in Waldron's book THE HARM IN HATE SPEECH. Allan finds them all lacking and ultimately unpersuasive. The review is not premised on a parsing of precedents. It considers Waldron's case from first principles.
Download the essay from SSRN at the link.