The Supreme Court’s decisions in the Turner Broadcasting cases ushered in a new era of rigorous judicial oversight of regulations aimed at shaping the economic structure of the media industry. The Turner decisions, and especially their application by lower courts, have expanded the range of regulations subject to heightened First Amendment scrutiny, consistently granted lower levels of deference to legislative and administrative judgments, and applied a degree of economic scrutiny of regulatory choices unseen since the Lochner era. In this Note, Michael Burstein argues that such scrutiny is inappropriate in light of the quickening pace of technological and economic change that marks the modern information environment. He observes that the technological balkanization of First Amendment jurisprudence has outlived its usefulness and that applying a unitary standard to all activities of a particular type of media fails to focus judicial attention on the entity’s core speech activities. Instead, Burstein proposes that courts draw a distinction between regulations that impact content production or editorial choices and those which aim to structure the distribution of information. The former remain deserving of heightened scrutiny, but the latter implicate a long tradition of allowing government regulation to improve the information order. Because government necessarily must make choices among competing instrumental arrangements, none of which implicates a particular normative theory of the First Amendment, such choices are entitled to judicial deference. As technology blurs the lines between different media outlets, this framework should provide the needed flexibility to protect the First Amendment interests of both media entities and the public they serve.
Communications and Media Law
The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have rejected notice pleading and have embraced instead a “plausibility” standard for pleading, which requires a plaintiff’s complaint to present facts suggestive of liability. A recurring criticism of the plausibility standard is that it will weed out many meritorious cases in which the plaintiff was unable to gain access to information relevant to liability prior to the commencement of the lawsuit. This Note argues that these criticisms have largely ignored historical and technological changes in how information is regulated and accessed—changes that mitigate the impact of the plausibility standard. Information asymmetries between plaintiffs and defendants are, for the broad run of cases, less severe today than they were seventy years ago when notice pleading was created. Search costs for information are now lower because of new technologies like the Internet. Laws forcing or facilitating the disclosure of information to the public have also proliferated in recent decades, making building a case easier for plaintiffs. While serious information asymmetries remain in certain types of cases, this Note argues that the best strategy for dealing with such cases is not to return wholesale to notice pleading but to create a “safety valve” mechanism modeled on Rule 56(f) to test whether plaintiffs had access to significant amounts of information concerning the defendant’s conduct.
The Bogeyman of “Harm to Children”: Evaluating the Government Interest Behind Broadcast Indecency Regulation
Although the government’s interest in preventing harm to children has played a central role in justifying regulation of broadcast indecency by the Federal Communications Commission (FCC), courts generally have failed to examine this asserted interest. In this Note, I argue that this failure has added great uncertainty to indecency regulation and that more thorough consideration of this interest may provide greater clarity on the boundaries of permissible speech. I first review the doctrinal history of the regulation of indecency, both within broadcasting and in other media, to demonstrate that the interest in preventing harm to children, though a central justification of the regulatory scheme, has been ill defined. I then examine the recent case of FCC v. Fox Television Stations, Inc. to illustrate that the vagueness of the current FCC indecency standard raises constitutional concerns. I contend that the vagueness may derive, at least in part, from courts’ failure to identify the type of harm to children that the government seeks to prevent through restrictions on indecent speech. Although the FCC’s structure may be inapt for identifying speech that is harmful to children, courts should undertake an investigation into the nature of the harm that indecency regulation seeks to prevent in order to provide limits on the scope of government authority. In the final Part, I therefore analyze five potential government interests, each stemming from a distinct potential harm that indecent broadcasting may create, and demonstrate how identifying the harm that indecency regulation is trying to address may restrict and define the scope of permissible government action.
Personally identifiable information (PII) is one of the most central concepts in
information privacy regulation. The scope of privacy laws typically turns on
whether PII is involved. The basic assumption behind the applicable laws is that if
PII is not involved, then there can be no privacy harm. At the same time, there is no
uniform definition of PII in information privacy law. Moreover, computer science
has shown that in many circumstances non-PII can be linked to individuals, and
that de-identified data can be re-identified. PII and non-PII are thus not immutable
categories, and there is a risk that information deemed non-PII at one time can be
transformed into PII at a later juncture. Due to the malleable nature of what constitutes
PII, some commentators have even suggested that PII be abandoned as the
mechanism by which to define the boundaries of privacy law.
In this Article, we argue that although the current approaches to PII are flawed, the
concept of PII should not be abandoned. We develop a new approach called “PII
2.0,” which accounts for PII’s malleability. Based upon a standard rather than a
rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information
that relates to either an “identified” or “identifiable” individual, and it establishes
different requirements for each category. To illustrate this theory, we use the
example of regulating behavioral marketing to adults and children. We show how
existing approaches to PII impede the effective regulation of behavioral marketing,
and how PII 2.0 would resolve these problems.
Assessing the Future IP Landscape of Music’s Cash Cow: What Happens When the Live Concert Goes Virtual
If piracy has been the bane of the music industry, and live performances are a financial buoy, what happens when live performances are ported to a virtual medium that all of a sudden may be subject to piracy again? This Note examines the various intellectual property frameworks through which one can look at the protectable elements of a live show or concert and what happens to the protectability of those elements once the show is ported to virtual reality. Given that technology to date has had a much larger impact on recorded music than on live performances, the introduction of virtual reality technology has serious disruptive potential. This Note argues that one can use existing intellectual property law to weave a complex web of protected elements around less traditional targets of IP like stage, set, and lighting design, background visuals, live performers, and props. This web of intellectual property protection will encourage strong contracting and yield more avenues for resisting piracy in the virtual reality world.
In designing protections for secondary users, this Note argues against requiring companies to provide front-end protection through notice of their privacy policies. Instead, this Note proposes a framework for incentivizing communications-capturing technology producers to distinguish between primary and secondary user data use on the back end.