Federal Communications Law Journal 

About: Federal Communications Law Journal is an academic journal. The journal publishes majorly in the area(s): The Internet & Competition (economics). It has an ISSN identifier of 0163-7606. Over the lifetime, 433 publications have been published receiving 2814 citations.

From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access

Abstract: I. INTRODUCTION Constructing our information environment as one composed of information "from diverse and antagonistic sources"(1) has been a central focus of structural regulation and its First Amendment justification for half a century. In the twentieth century, structural media regulation meant tinkering with the configuration of a mass media market aimed at eyeballs. For example, group ownership and duopoly rules, licensing criteria like diversity and localism, financial interest and syndication rules, or cable access rules, took the basic structure of mass media markets as given, and tried to make sure that this basic structure delivered somewhat more diverse content than it would if left to its own devices. Technology now makes possible the attainment of decentralization and democratization by enabling small groups of constituents and individuals to become users--participants in the production of their information environment--rather than by lightly regulating concentrated commercial mass media to make them better serve individuals conceived as passive consumers. Structural media regulation in the twenty-first century must, in turn, focus on enabling a wide distribution of the capacity to produce and disseminate information as a more effective and normatively attractive approach to serve the goals that have traditionally animated structural media regulation. As the digitally networked environment matures, regulatory choices abound that implicate whether the network will be one of peer users or one of active producers who serve a menu of prepackaged information goods to consumers whose role is limited to selecting from this menu. These choices occur at all levels of the information environment: the physical infrastructure layer--wires, cable, radio frequency spectrum--the logical infrastructure layer--software--and the content layer. At the physical infrastructure level, we are seeing it in such decisions as the digital TV orders (DTV Orders), or the question of open access to cable broadband services, and the stunted availability of license-free spectrum. At the logical layer, we see laws like the Digital Millennium Copyright Act (DMCA)(2) and the technology control litigation that has followed hard upon its heels, as owners of copyrighted works attempt to lock up the software layer so as to permit them to control all valuable uses of their works.(3) At the content layer, we have seen an enclosure movement aimed at enabling information vendors to capture all the downstream value of their information. This enclosure raises the costs of becoming a user--rather than a consumer--of information and undermines the possibility of becoming a producer/user of information for reasons other than profit, by means other than sales. At all these levels, the fundamental commitment of our democracy to secure "the widest possible dissemination of information from diverse and antagonistic sources"(4) which has traditionally animated structural media regulation, should be on securing a significant component of the information environment for creative use by users. To implement such an agenda would require a focus on identifying resources necessary for the production and exchange of information and fashioning regulatory policies that make access to and use of these resources equally and ubiquitously available to all users of the network. Developing a series of commons in such resources is an important mode of implementation of this commitment. Other modes could include access and carriage requirements aimed specifically at making possible the development of a network of peer users. Identifying and sustaining commons and securing access to communicative resources are more important focuses for information policy concerned with democracy than assuring that there are eight rather than three broadcast networks or that no two networks are under common ownership. II. AT THE CROSSROADS The basic structure of mass media markets emerged in the middle of the nineteenth century. …

Code and Other Laws of Cyberspace

Abstract: Code and Other Laws of Cyberspace, by Lawrence Lessig, Basic Books, 1999, 230 pages. I. INTRODUCTION Just as Rachel Carson's classic Silent Spring awakened the world to environmental pollution in 1962, Larry Lessig's insightful Code and Other Laws of Cyberspace(1) (Code) seeks to warn longtime inhabitants of cyberspace of a major danger to the wild, unregulated, "1960s-like" environments to which they have grown accustomed. Code challenges the presumption of early Internet heroes, like John Perry Barlow, that technology has created an inherently free environment that can only remain so if governments leave it alone. Code observes, rather, that cyberspace is quite susceptible to alteration and that the gravest threats to online civil liberties in the United States are posed, not by laws, but by computer code--particularly those designed to commercialize the Web for e-commerce. Code explains how the business community's efforts (with government support) to make it easier to confirm cyberspace buyers' identities also unintentionally facilitate regulation of other conduct. Lessig's particular concern is with those civil liberties and other values central to American society, that the framers of the Constitution left without explicit legal protection; the limits of the technology of the time already safeguarded them. Now that the Internet and other new media have eliminated many physical and economic constraints on intrusive conduct-like the tracking of every page that an Internet suffer views--Code pleads for citizens to defend those privacy and other values they consider fundamental, lest they be diminished--if not eliminated--by code. In fact, the introduction of e-commerce-friendly Internet code is somewhat analogous to the genetic engineering of agricultural products. As Europeans--and increasingly Americans--have come to recognize, the manipulation of such basic codes may have widespread effects not limited to their targeted product markets or by national boundaries.(2) This has led many to demand public debate on the issue of what many call "Frankenfoods," and its effects on world ecosystems and human health. While Lessig certainly does not oppose e-commerce code, he advocates collective decision making where code may have major consequences with respect to important societal liberties. From an economist's perspective, Lessig understands that the "externalities" of e-commerce code--in terms of harm to social values--are too significant to expect private sector code writers to design a socially optimal architecture guided solely by Adam Smith's invisible hand. Rather, democratic principles require that, prior to the adoption of important varieties of what he terms "West Coast [computer],"(3) there be public discussions comparable to those associated with the adoption of "East Coast [legal] code."(4) Decisions about how much control over information society wants to allow and by whom, call for democratic decision making. With concerns similar to those of political activist Jeremy Rifkin,(5) Lessig implores citizens not to maintain blind faith in the social value judgments of the commercial marketplace where externalities may be given short shrift, if not ignored altogether, until irreversible harm is done. While Code focuses on issues arising from Internet technology, it also discusses the more general relationship between technology and law. Code observes that four principal forces regulate people's behavior: laws, norms, prices, and technology (although it calls the latter forces "market" and "architecture"). It explains how each of these limit individuals' actions, how the forces can work directly or indirectly in combinations, and how improvements in technology can dramatically alter the composite constraint on people's conduct. The middle third of Code is entirely devoted to identifying how technology--primarily the Internet--is significantly altering the net effect of these four forces on behaviors. …

The Newest Way to Screen Job Applicants: A Social Networker's Nightmare

Abstract: I. SOCIAL NETWORKING: THINK TWICE A. Social Networks and Their Dangers 1. The Messages Social Networkers Communicate 2. Employers Are Discovering Their Options B. Protecting Social Networkers' Privacy: An Impossible Task? 1. Facebook's Privacy Settings and Their Shortcomings 2. Should a Right to Privacy on Social Networking Sites Be Recognized? 3. The Reasonable Expectation of Privacy Requirement: Being Seen by Some Does Not Mean One Should be Seen by All 4. The Reasonable Expectation of Privacy Requirement: Once Information is Provided to Some, it is Open to All? 5. Interpreting Precedent: The Future, Privacy Concerns, and the Stored Communications Act 6. The Internet: An Amazing and Unruly Medium C. Are Employers Violating Facebook's Terms of Service? II. CONCLUSION: THINKING PRACTICALLY III. APPENDIX A: FACEBOOK'S PRIVACY POLICY IV. APPENDIX B: FACEBOOK'S TERMS OF SERVICE V. APPENDIX C: THE STORED COMMUNICATIONS ACT I. SOCIAL NETWORKING: THINK TWICE Web sites designed to promote shared information--like blogs, Facebook, Friendster, Xanga, and MySpace--may provide more than the opportunity to share stories and details of a college student's or graduate's life. To many students and graduates who are "nurtured in open, collegial situations, blogging and personal Internet postings on social networking Internet sites such as MySpace, Facebook, and Friendster ... blur the line between personal and public." (1) Students and graduates today are getting more than they bargain for as they attempt to enter the workforce and realize their blogging and social networking ways can come back to bite them. This Note discusses the potential ramifications of using shared information sites, focusing on the Facebook social network and its users. Employers who hire graduating students are steadily discovering that social networking sites allow them to learn more than they ever could from reading an applicant's resume and cover letter. This Note explores some of the legal issues raised when employers conduct social network background checks. Its primary focus is to determine what kinds of privacy expectations, if any, social networkers can anticipate. A. Social Networks and Their Dangers Social networks on the Internet have become increasingly popular among the general population, but these networking sites are still used most frequently by college students and recent graduates. (2) Most social networks merely require a user to register by providing basic information and a valid email address. Social network users can then post anything they wish on that particular Internet social Web site. Users can post their comments, upload photographs, join and form groups with other networkers, and share their personal information. They can also freely search other users' profiles in order to find and interact with other social networkers throughout the world. 1. The Messages Social Networkers Communicate On Facebook, as is the case with many social networks, users create profiles to share basic information that will allow others to search for, find, and connect with them. However, some users provide information about themselves that "go[es] to the very edges of decency and legality." (3) For instance, a Facebook user can find more than 500 groups and more than 500 events that contain the search term "sex" using a basic Facebook search. (4) Some of the groups that can be located using this search term on Facebook are fairly tame, like the group referring to the popular television series with the title, "Alright ... I admit it ... I'm a Sex in the City addict." On the other hand, the vast majority of Facebook groups containing the word "sex" are far less innocuous with titles like "Casual Sex at IU," "Chances are I'm currently having Sex," "Girls who Love Sex," "I Actually HAVE had Sex on Campus," and other similar groups. …

Self-Regulation and the Media

Abstract: I. INTRODUCTION Calls for self-regulation of electronic media have recently been heard in Washington, D.C. In December 1998, a Presidential Advisory Committee recommended that digital television broadcasters adopt a voluntary Code of Conduct highlighting their public interest commitments.(1) The Advisory Committee Report even included a "Model Voluntary Code" drafted by a subcommittee headed by Professor Cass Sunstein.(2) Similarly, President Clinton has called for industry self-regulation to address consumer privacy concerns on the Internet.(3) This theme has been echoed by the Department of Commerce's National Telecommunications and Information Administration (NTIA)(4) and the Federal Trade Commission (FTC).(5) However, the FTC released a report in June 1998, finding that self-regulation had not been successful thus far in protecting consumer privacy.(6) It recommended congressional action specifically to address the issue of children's privacy online, while giving more time to industry to prove it can regulate itself before calling for general privacy legislation.(7) In the last few days of the 1998 session, Congress in fact passed legislation designed to protect the privacy of children online. Yet, the regulatory scheme established by this legislation contains specific incentives for industry to self-regulate.(8) Why are the Advisory Committee, the Clinton Administration, and the FTC all calling for self-regulation? It is most likely that they see self-regulation as superior to (or at least more politically acceptable than) government regulation. Many scholars have also touted the benefits of self-regulation, but self-regulation is not without its critics. Part II of this Article reviews the literature on self-regulation to define what is meant by the term, to identify the purported advantages and disadvantages of self-regulation, and to identify the conditions needed for its success. Part III examines situations involving media where self-regulation has been utilized to determine why it was undertaken and whether is has been successful.(9) Based on these examples, Part IV suggests some tentative conclusions about the circumstances under which self-regulation works. Finally, it applies these findings to recent proposals to utilize self-regulation in connection with digital television and privacy on the Internet. II. SELF-REGULATION A. The Definition of Self-Regulation The term self-regulation means different things to different people. In introducing a collection of papers analyzing the prospects of self-regulation for protecting privacy on the Internet, Assistant Secretary of Commerce Larry Irving observed: Most basically, we need to define what we mean, as the term "self-regulation" itself has a range of definitions. At one end of the spectrum, the term is used quite narrowly, to refer only to those instances where the government has formally delegated the power to regulate, as in the delegation of securities industry oversight to the stock exchanges. At the other end of the spectrum, the term is used when the private sector perceives the need to regulate itself for whatever reason--to respond to consumer demand, to carry out its ethical beliefs, to enhance industry reputation, or to level the market playing field--and does so.(10) To devise a definition for purposes of this Article, it is useful to break apart the term "self-regulation." The word "self' refers to the actor. It could mean a single company. More commonly, however, and for purposes of this Article, it is used to refer to a group of companies acting collectively, for example, through a trade association.(11) The word "regulation" refers to what the actor is doing. Regulation has three components: (1) legislation, that is, defining appropriate rules; (2) enforcement, such as initiating actions against violators; and (3) adjudication, that is, deciding whether a violation has taken place and imposing an appropriate sanction. …

Keeping the Internet Neutral?: Tim Wu and Christopher Yoo Debate

Abstract: Tim Wu is Professor of Law at the Columbia Law School. He is the author of Network Neutrality, Broadband Discrimination (2003) and coauthor, with Jack Goldsmith, of Who Controls the Internet? (Oxford University Press 2006). Christopher S. Yoo is Professor of Law and Director of the Technology and Entertainment Law Program at the Vanderbilt University Law School. He is the author of Beyond Network Neutrality (2005) and Network Neutrality and the Economics of Congestion (2006) and the coauthor, with Daniel F. Spulber, of the forthcoming Networks in Telecommunications: Economics and Law (Cambridge University Press).