This paper discusses the problems of unique conduct that relate to and result from online harassment -- namely, doxing and swatting. The author analyzes existing laws that potentially regulate such conduct with a focus on data privacy. The author then argues the inadequacy of current statutes and presents alternative recommendations for amendments that would likely result in better regulation of doxing and swatting.
{"title":"Data Privacy in the Cyber Age: Recommendations for Regulating Doxing and Swatting","authors":"J. D. L. B. Li","doi":"10.2139/ssrn.3012266","DOIUrl":"https://doi.org/10.2139/ssrn.3012266","url":null,"abstract":"This paper discusses the problems of unique conduct that relate to and result from online harassment -- namely, doxing and swatting. The author analyzes existing laws that potentially regulate such conduct with a focus on data privacy. The author then argues the inadequacy of current statutes and presents alternative recommendations for amendments that would likely result in better regulation of doxing and swatting.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115076877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
All good things must come to an end. The set of arrangements known as the Public Switched Telephone Network (PSTN) is the foundation for the modern global communications system, and the myriad benefits it delivers. Today, the era of the PSTN is swiftly coming to a close. The PSTN’s technical, economic, and legal pillars have been undermined by three developments: the rise of the Internet; customers and providers abandoning wireline voice telephony; and the collapse of the regulatory theory for data services under the Communications Act. This paper provides a framework for moving beyond the PSTN, by distinguishing the aspects of the existing system that should be retained, reconstituted, or abandoned. The transition from the PSTN to a broadband network of networks is the most important communications policy event in at least half a century. It calls into question the viability of the Federal Communications Commission, the Communications Act, and the telecommunications industry as we know it. Yet the significance of the transition is not widely recognized. Attention has focused on specific manifestations and consequences, such as the rise of “wireless-only” households and problems with rural call completion. The time has come to address the situation squarely. The lesson from prior structural transitions in communications such as digital television, the ATT 2) a technical architecture to provide a service (wireline voice telephony) 3) a business and market structure; 4) interconnection obligations; 5) a social contract; 6) strategic national infrastructure.These aspects define not only the obligations on network operators (such as common carriage, universal service, and law enforcement access), but also demarcate the roles of the FCC and other agencies (including state public utility commissions, the FTC, the Department of Justice, and NTIA).The six-faceted definition of the PSTN provides a roadmap for the transition. The elements earlier on the list are rooted in the particular historical, legal and technical circumstances that gave birth to the PSTN. They are anachronistic in the current environment, and should be restructured or, when appropriate, eliminated. The later elements are public policy obligations that should be satisfied regardless of the historical circumstances. Separating the dimensions of the transition in this way also makes it possible to focus in on specific challenges, such as the technical standards for addressing and service interconnection in an all-IP environment, separate from broad public interest questions such as the level of functionality that should be guaranteed to all Americans. By examining the content of each aspect of the PSTN in light of the business and technological landscape today, we can ensure that the transition to a digital broadband world reinforces, rather than undermines, the achievements of the past century of communications policy.
{"title":"No Dialtone: The End of the Public Switched Telephone Network","authors":"K. Werbach","doi":"10.2139/SSRN.2241658","DOIUrl":"https://doi.org/10.2139/SSRN.2241658","url":null,"abstract":"All good things must come to an end. The set of arrangements known as the Public Switched Telephone Network (PSTN) is the foundation for the modern global communications system, and the myriad benefits it delivers. Today, the era of the PSTN is swiftly coming to a close. The PSTN’s technical, economic, and legal pillars have been undermined by three developments: the rise of the Internet; customers and providers abandoning wireline voice telephony; and the collapse of the regulatory theory for data services under the Communications Act. This paper provides a framework for moving beyond the PSTN, by distinguishing the aspects of the existing system that should be retained, reconstituted, or abandoned. The transition from the PSTN to a broadband network of networks is the most important communications policy event in at least half a century. It calls into question the viability of the Federal Communications Commission, the Communications Act, and the telecommunications industry as we know it. Yet the significance of the transition is not widely recognized. Attention has focused on specific manifestations and consequences, such as the rise of “wireless-only” households and problems with rural call completion. The time has come to address the situation squarely. The lesson from prior structural transitions in communications such as digital television, the ATT 2) a technical architecture to provide a service (wireline voice telephony) 3) a business and market structure; 4) interconnection obligations; 5) a social contract; 6) strategic national infrastructure.These aspects define not only the obligations on network operators (such as common carriage, universal service, and law enforcement access), but also demarcate the roles of the FCC and other agencies (including state public utility commissions, the FTC, the Department of Justice, and NTIA).The six-faceted definition of the PSTN provides a roadmap for the transition. The elements earlier on the list are rooted in the particular historical, legal and technical circumstances that gave birth to the PSTN. They are anachronistic in the current environment, and should be restructured or, when appropriate, eliminated. The later elements are public policy obligations that should be satisfied regardless of the historical circumstances. Separating the dimensions of the transition in this way also makes it possible to focus in on specific challenges, such as the technical standards for addressing and service interconnection in an all-IP environment, separate from broad public interest questions such as the level of functionality that should be guaranteed to all Americans. By examining the content of each aspect of the PSTN in light of the business and technological landscape today, we can ensure that the transition to a digital broadband world reinforces, rather than undermines, the achievements of the past century of communications policy.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134111657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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 gives the U.S. President plenary powers over the Internet in times of emergency or war. If this claim is correct, it should be particularly troubling to network neutrality advocates who have argued for expansive FCC jurisdiction over the Internet, since the Executive powers under Section 606 are tied to the FCC’s authority over communications policy. This paper evaluates the language, history, and application of Section 606, and argues that, instead of implicitly relying on the vague and antiquated provisions of a statute crafted long before the Internet was born, cybersecurity reform should include explicit executive emergency powers with clear and appropriate limitations.
关于网络安全政策争论的一个关键领域是，在发生网络紧急情况或网络战争时，总统是否应该有权关闭全部或部分互联网。例如，2009年提出的《网络安全法案》(Cybersecurity Act of 2009)就包含了被批评者嘲笑为互联网“死亡开关”的内容。目前的全面网络安全改革法案《2012年网络安全法案》(cybersecurity Act of 2012)选择了一种软的公私应急计划模式，而不是“终止开关”。但是，“死亡开关”可能仍然存在。该法案的支持者认为，1934年《通信法案》第606条已经赋予了美国总统在紧急情况或战争时期管理互联网的全部权力。如果这种说法是正确的，那么对于那些主张扩大FCC对互联网管辖权的网络中立倡导者来说，这应该是特别令人不安的，因为第606条规定的行政权力与FCC对通信政策的权力是联系在一起的。本文评估了第606条的语言、历史和应用，并认为，网络安全改革应包括明确的行政紧急权力，并具有明确和适当的限制，而不是隐含地依赖于互联网诞生之前很久制定的法规的模糊和过时的条款。
{"title":"Does the Communications Act of 1934 Contain a Hidden Internet Kill Switch","authors":"D. Opderbeck","doi":"10.2139/SSRN.2131287","DOIUrl":"https://doi.org/10.2139/SSRN.2131287","url":null,"abstract":"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 gives the U.S. President plenary powers over the Internet in times of emergency or war. If this claim is correct, it should be particularly troubling to network neutrality advocates who have argued for expansive FCC jurisdiction over the Internet, since the Executive powers under Section 606 are tied to the FCC’s authority over communications policy. This paper evaluates the language, history, and application of Section 606, and argues that, instead of implicitly relying on the vague and antiquated provisions of a statute crafted long before the Internet was born, cybersecurity reform should include explicit executive emergency powers with clear and appropriate limitations.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114438300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable - attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a 'pay or play' approach that allows broadcasters to pay a fee to a fund for high-quality public television children’s programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game-playing and FCC content-intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of 'pay or play' models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.
{"title":"A \"Pay or Play\" Experiment to Improve Children's Educational Television","authors":"L. Levi","doi":"10.2139/SSRN.1464826","DOIUrl":"https://doi.org/10.2139/SSRN.1464826","url":null,"abstract":"This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable - attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a 'pay or play' approach that allows broadcasters to pay a fee to a fund for high-quality public television children’s programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game-playing and FCC content-intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of 'pay or play' models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131907698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. INTRODUCTION II. COMPARING A TT it reinforced it in granting securities law precedent over antitrust in its 2007 decision in Credit Suisse Securities v. Billing. (12) The implicit assumption in the recent decisions is that regulation and antitrust are substitute methods for controlling market power. In fact, regulation and antitrust are complementary in this context, as well as in others. (13) Absent regulatory constraints on the direct exercise of market power over the local exchange (AT&T) or network elements (Trinko) through monopoly pricing, the regulated firm would have no incentive to subvert competition in related markets. …
{"title":"Essential Facilities and Trinko: Should Antitrust and Regulation Be Combined?","authors":"T. Brennan","doi":"10.13016/M2YF6P-IDRQ","DOIUrl":"https://doi.org/10.13016/M2YF6P-IDRQ","url":null,"abstract":"I. INTRODUCTION II. COMPARING A TT it reinforced it in granting securities law precedent over antitrust in its 2007 decision in Credit Suisse Securities v. Billing. (12) The implicit assumption in the recent decisions is that regulation and antitrust are substitute methods for controlling market power. In fact, regulation and antitrust are complementary in this context, as well as in others. (13) Absent regulatory constraints on the direct exercise of market power over the local exchange (AT&T) or network elements (Trinko) through monopoly pricing, the regulated firm would have no incentive to subvert competition in related markets. …","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"29 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113986110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Broadcast Flag was an FCC Rule adopted in late 2003 to restrict "indiscriminate Internet redistribution" of television programs by limiting the capabilities of digital television tuners. While it would not have stopped television piracy, the Rule would have sharply limited independent and open-source development of home media technology with features like TiVo's "pause live TV." I argue that technology mandates must be assessed not only by their effectiveness against the problem they are designed to address, but also by their collateral effects on technology development and end-user innovation. Measured against this wider circle of effects, the Broadcast Flag Rule would hurt far more than it helped. [Since this piece was published, the Broadcast Flag Rule was struck down by the D.C. Circuit on the grounds that the FCC lacked jurisdiction to regulate signals once received. As of late 2005, Congress is being lobbied to re-enact the Flag rule or to give the FCC the power to do so.]
{"title":"The Broadcast Flag: It's Not Just TV","authors":"W. Seltzer","doi":"10.2139/SSRN.870589","DOIUrl":"https://doi.org/10.2139/SSRN.870589","url":null,"abstract":"The Broadcast Flag was an FCC Rule adopted in late 2003 to restrict \"indiscriminate Internet redistribution\" of television programs by limiting the capabilities of digital television tuners. While it would not have stopped television piracy, the Rule would have sharply limited independent and open-source development of home media technology with features like TiVo's \"pause live TV.\" I argue that technology mandates must be assessed not only by their effectiveness against the problem they are designed to address, but also by their collateral effects on technology development and end-user innovation. Measured against this wider circle of effects, the Broadcast Flag Rule would hurt far more than it helped. [Since this piece was published, the Broadcast Flag Rule was struck down by the D.C. Circuit on the grounds that the FCC lacked jurisdiction to regulate signals once received. As of late 2005, Congress is being lobbied to re-enact the Flag rule or to give the FCC the power to do so.]","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129929855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In April 2004, the World Trade Organization (WTO) assumed a new role as a highly specialized, global regulator of domestic telecommunications policy. In response to a complaint filed by the United States, a WTO arbitration panel found that Mexico had violated its commitments under the Annex on Telecommunications to the General Agreement on Trade in Services (GATS) by failing, among other things, to ensure that Telmex, Mexico's largest supplier of basic telecommunications services, provide interconnection to U.S. telecommunications carriers at international settlement rates that were cost-oriented. The WTO panel deemed long-run average-incremental cost (LRAIC) to be the appropriate cost standard for setting settlement rates. Mexico thus became obliged to change its domestic telecommunications regulations or face trade sanctions.The decision is the first WTO arbitration to deal solely with trade in services under GATS. This article shows that both the U.S. complaint against Mexico and the WTO decision misunderstood or ignored critical economic facts and principles. Both conflated international settlement rates and domestic interconnection pricing, and both failed to recognize the factors that would justify Mexico's permitting Telmex to charge a settlement rate exceeding LRAIC. Moreover, the U.S. government failed to understand that U.S. long-distance carriers were not passing reductions in Mexico's international settlement rate on to their U.S. customers. Finally, both the U.S. government and the WTO incorrectly defined the relevant market and incorrectly evaluated market power. The relevant economic question should have been whether Telmex had market power in point-to-point international telecommunications services between the United States and Mexico. The WTO decision reveals a startling low level of economic sophistication in its analysis of inescapably economic questions. Given the high level of economic sophistication that is now standard in competition law and sector-specific regulation around the world, the WTO has made a poor start in its implementation of the GATS arbitration process.
{"title":"Uberregulation Without Economics: The World Trade Organization's Decision in the U.S.-Mexico Arbitration on Telecommunications Services","authors":"J. Sidak, Hal J. Singer","doi":"10.2139/SSRN.577123","DOIUrl":"https://doi.org/10.2139/SSRN.577123","url":null,"abstract":"In April 2004, the World Trade Organization (WTO) assumed a new role as a highly specialized, global regulator of domestic telecommunications policy. In response to a complaint filed by the United States, a WTO arbitration panel found that Mexico had violated its commitments under the Annex on Telecommunications to the General Agreement on Trade in Services (GATS) by failing, among other things, to ensure that Telmex, Mexico's largest supplier of basic telecommunications services, provide interconnection to U.S. telecommunications carriers at international settlement rates that were cost-oriented. The WTO panel deemed long-run average-incremental cost (LRAIC) to be the appropriate cost standard for setting settlement rates. Mexico thus became obliged to change its domestic telecommunications regulations or face trade sanctions.The decision is the first WTO arbitration to deal solely with trade in services under GATS. This article shows that both the U.S. complaint against Mexico and the WTO decision misunderstood or ignored critical economic facts and principles. Both conflated international settlement rates and domestic interconnection pricing, and both failed to recognize the factors that would justify Mexico's permitting Telmex to charge a settlement rate exceeding LRAIC. Moreover, the U.S. government failed to understand that U.S. long-distance carriers were not passing reductions in Mexico's international settlement rate on to their U.S. customers. Finally, both the U.S. government and the WTO incorrectly defined the relevant market and incorrectly evaluated market power. The relevant economic question should have been whether Telmex had market power in point-to-point international telecommunications services between the United States and Mexico. The WTO decision reveals a startling low level of economic sophistication in its analysis of inescapably economic questions. Given the high level of economic sophistication that is now standard in competition law and sector-specific regulation around the world, the WTO has made a poor start in its implementation of the GATS arbitration process.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121701871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Racist speech has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, "hate speech" lays the foundation for harmful social movements that ultimately result in the oppression and persecution of "outgroups." From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in imminent harm before it can be constitutionally proscribed. Tsesis's book then proposes a model statute to criminalize "hate speech" based on the long-term harm such speech can cause. In this Essay, I question the book's premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the "imminent harm" requirement in Brandenburg. Rather than being premised on a view that speech cannot cause long-term harm, Brandenburg's "imminent harm" requirement is designed primarily as a prophylactic rule to prevent government from using a long-term harm rationale to suppress speech based on the government's view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term harm that the speech can cause.
种族主义言论长期以来一直是第一修正案法理学和学术评论中重大争议的主题。在最近的一本书中，亚历山大·特西斯(Alexander tesis)认为，“仇恨言论”经过长时间的系统发展，为有害的社会运动奠定了基础，最终导致对“外围群体”的压迫和迫害。基于这一前提，tesis认为，美国最高法院应该驳回Brandenburg v. Ohio一案，在该案中，最高法院认为，宣传或煽动必须有可能导致迫在眉睫的伤害，才能被宪法禁止。然后，塞西的书提出了一个示范法规，根据“仇恨言论”可能造成的长期伤害，将其定为刑事犯罪。在这篇文章中，我质疑这本书的前提和结论。我的主要观点是，tessis误解了勃兰登堡案中“迫在眉睫的伤害”要求的基本基础之一。勃兰登堡的“迫在眉睫的伤害”要求不是以言论不会造成长期伤害的观点为前提，而是主要被设计为一种预防性规则，以防止政府基于政府的真理观，利用长期伤害的理由来压制言论。因此，要支持一项将言论定为犯罪的法律，仅仅依靠言论可能造成的长期伤害是不够的。
{"title":"Attacking Brandenburg with History: Does the Long-Term Harm of Biased Speech Justify a Criminal Statute Suppressing It?","authors":"Anuj C. Desai","doi":"10.2139/SSRN.413102","DOIUrl":"https://doi.org/10.2139/SSRN.413102","url":null,"abstract":"Racist speech has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, \"hate speech\" lays the foundation for harmful social movements that ultimately result in the oppression and persecution of \"outgroups.\" From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in imminent harm before it can be constitutionally proscribed. Tsesis's book then proposes a model statute to criminalize \"hate speech\" based on the long-term harm such speech can cause. In this Essay, I question the book's premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the \"imminent harm\" requirement in Brandenburg. Rather than being premised on a view that speech cannot cause long-term harm, Brandenburg's \"imminent harm\" requirement is designed primarily as a prophylactic rule to prevent government from using a long-term harm rationale to suppress speech based on the government's view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term harm that the speech can cause.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125957017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order - a blandishment, really, expressed as an awkward "statement of policy" by the Department of Commerce, carrying no direct force of law - came about because the management of obscure but critical centralized Internet functions was at a political crossroads. This essay reviews Milton Mueller's book Ruling the Root, and the ways in which it accounts for what happened both before and after that crossroads.
{"title":"Book Review: What's in a Name?","authors":"Jonathan Zittrain","doi":"10.2139/SSRN.350560","DOIUrl":"https://doi.org/10.2139/SSRN.350560","url":null,"abstract":"In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order - a blandishment, really, expressed as an awkward \"statement of policy\" by the Department of Commerce, carrying no direct force of law - came about because the management of obscure but critical centralized Internet functions was at a political crossroads. This essay reviews Milton Mueller's book Ruling the Root, and the ways in which it accounts for what happened both before and after that crossroads.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125375423","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses the nondelegation doctrine that inheres in our constitutional separation of powers regime, and it examines whether the congressional delegation of public interest authority to the FCC violates the nondelegation doctrine. Under today's jurisprudence, the article acknowledges that even a standard as vague as the "public interest" is not likely to be found unconstitutional. But it argues that even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today's environment of increasing "convergence," with competition emerging across communications sectors, Congress should fulfill its responsibility to establish fundamental policy for an industry that is such an integral part of the overall economy. Congress should not wait to possibly be compelled by the courts to replace the public interest standard with more specific legislative guidance. Instead, it should provide the FCC with a clear roadmap toward a deregulatory endgame consistent with a competitive marketplace.
{"title":"The Public Interest Standard: Is it too Indeterminate to be Constitutional?","authors":"R. May","doi":"10.2139/SSRN.294712","DOIUrl":"https://doi.org/10.2139/SSRN.294712","url":null,"abstract":"This article discusses the nondelegation doctrine that inheres in our constitutional separation of powers regime, and it examines whether the congressional delegation of public interest authority to the FCC violates the nondelegation doctrine. Under today's jurisprudence, the article acknowledges that even a standard as vague as the \"public interest\" is not likely to be found unconstitutional. But it argues that even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today's environment of increasing \"convergence,\" with competition emerging across communications sectors, Congress should fulfill its responsibility to establish fundamental policy for an industry that is such an integral part of the overall economy. Congress should not wait to possibly be compelled by the courts to replace the public interest standard with more specific legislative guidance. Instead, it should provide the FCC with a clear roadmap toward a deregulatory endgame consistent with a competitive marketplace.","PeriodicalId":423100,"journal":{"name":"Federal Communications Law Journal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124440566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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