Volume 70.3 Full Issue

Welcome to the third and final issue of Volume 70 of the Federal Communications Law Journal (“Journal”), the official journal of the Federal Communications Bar Association (“FCBA”). This summer has been an exciting transition period for the Journal, as the Class of 2018 members at The George Washington University Law School graduated, and incoming Volume 71 board and staff members were selected. Both outgoing and incoming members have dedicated their summer months to produce this issue, which provides noteworthy perspectives on topics ranging from drone regulation, zero-rating, to cyber harassment. As this is our Annual Review issue, we are also very proud to present nine case briefs, penned by incoming Journal board members, of legal disputes that were in the spotlight in the communications field last year.

This issue features a Guest Comment written by Lisa Li, who is a recent graduate from The George Washington University Law School, and a current Legal & Government Affairs Associate at Pondera International LLC. In her Comment, Ms. Li denotes the problem arising from diverging foci of current cyber-harassment laws; as a result, perpetrators and victims of cyber stalking and harassment in the Washington D.C. metropolitan area may face difficulties in determining their legal rights. Ms. Li highlights the need for new federal laws that directly deals with doxing and swatting issues, to govern actions that result from online harassment.

The first Student Note is written by McKenzie Schnell, who proposes that the most effective means to curb discriminatory zero-rating practices is to make the legal argument that certain zero-rated contracts are harmful to the public interest under the Mobile-Sierra Doctrine. The second Student Note is written by Samantha Dorsey, who points to the lack of regulation on the use of drones in the commercial market; Ms. Dorsey suggests a two-fold regulatory framework that would constrain the means of which data is collected and provide non-participants with opt-out options. Last but not least, the third Student Note is written by Bethany Krystek, who underscores the need for improved risk management in Computer-Assisted Dispatch systems for large cities with high rates of crime, so that chances of violent Post- Traumatic Stress Disorder triggers and use of excessive force are minimized.

Finally, the outgoing Journal members would like to thank the FCBA and The George Washington University Law School for the opportunity to serve the Journal this year. It was truly an honor. As a team, we worked hard to produce both qualitative and quantitative content for our esteemed colleagues of the FCBA, and we leave both proud and humbled by the experience. As we turn the reigns over to the talented Volume 71 members, we wish the team the best of luck in the new academic year!

We welcome your feedback or questions to fclj@law.gwu.edu and we ask that article submission be sent to fcljarticles@law.gwu.edu. The Annual Review issue and our archive will be available at www.fclj.org.

Jane Lee

Editor-in-Chief

Article

Data Privacy in the Cyber Age: Recommendations for Regulating Doxing and Swatting
By Lisa Bei Li

Although online harassment encompasses many activities, including cyberbullying and cyberstalking, ever-increasing “troll storms” lead to two unique phenomena: doxing and swatting. Doxing is when someone’s personal information is shared on the Internet without their consent and swatting is when someone makes a fictitious report to the police that leads armed officers to come to an unknowing “victim’s” home. In these instances, an online “troll,” defined as an inflammatory Internet user, calls to action other trolls to cause a “storm” that incites the group to disseminate victims’ private information and hail armed forces to victims’ homes as acts of terrorization.

Every Internet user is subject to potential doxing. As a form of harassment, perpetrators reveal victims’ personal information without permission. The information shared is usually sensitive, like one’s social security number, medical records, and personal messages or photos. Even elderly individuals, who take care to lead private lives, are sometimes “doxed.”

Victims of online harassment are also subject to swatting. Swatters make fraudulent calls to the police who then send SWAT teams to victims’ allegedly dangerous homes to remove them at gunpoint. According to the New York Times, “[t]he FBI has estimated that about 400 cases of swatting occur nationwide every year, but anecdotal reports suggest the numbers are far higher than that . . . .”

While online harassment comes in many forms, abuse of the Internet and its resulting harms can be curbed if the government focuses on the aspects of harassment that the law can regulate, particularly with regards to data privacy. This would require targeting the conduct related to and resulting from online harassment, such as doxing and swatting. While speech and expression may not be easily restrained, the manipulative and unauthorized use of others’ data and the deception of police forces can be prevented. If these goals of “troll storms” are eliminated, trolls will be less likely to disrupt others both on and off the Internet.

Notes

The Mobile-Sierra Doctrine: An Unlikely Friend for Opponents of Zero-Rating
By McKenzie Schnell

Zero-rating is an increasingly hot-button issue because of previous ambiguity, on behalf of the Federal Communications Commission (FCC), in how it should be regulated. While many consumers and conglomerate broadband providers are proponents of zero-rating, opponents contend that the practice violates the tenets of net neutrality. Prior to the new Republican administration, zero-rating was regulated on a case-by-case basis but was not banned entirely. However, through a 2016 investigation by the FCC into zero-rating practices, it became apparent that some zero-rating structures were seemingly discriminatory, namely AT&T and Verizon’s.

Upon designation as Commissioner of the FCC, Ajit Pai dismissed all investigations into AT&T and Verizon’s zero-rating programs and is unlikely to regulate the practice at all. This should be alarming to the public because these discriminatory practices will persist and likely, expand. Thus, the best mechanism for remedying discriminatory zero-rating practices is a lawsuit arguing that, pursuant to the Mobile-Sierra Doctrine, zero-rated contracts like those between AT&T, Verizon, and their affiliated providers are harmful to the public interest.

They are Watching You: Drones, Data & the Unregulated Commercial Market
By Samantha Dorsey

The leading privacy tort laws in the United States have failed to grow and adapt with the ever emerging technological landscape of the 21st century. In particular, the regulations controlling the growing commercial drone market are nearly non-existent. Other than non-binding “best practices” suggestions, the government has remained silent on restrictions, permissibility, and legal ramifications and protections concerning data-collection and privacy invasion by way of commercial drone use. This note will address privacy laws in the United States, how drones will likely be used in the commercial market and the lack of regulations to control such use. Furthermore, a regulatory solution addressing the lack of controls over drone-based data collection will be proposed. This proposition will create a starting point for how the United States should look at the drone industry, which will inevitably change the way the United States—and the rest of the world—approach drone-based privacy and data collection issues, and ultimately, how these issues will alter an individual’s “reasonable expectation of privacy.”

9-1-1, What’s Your Risk? Minimizing the Risk of Police Violence Through Computer-Assisted Dispatch
By Bethany Krystek

Recent tragedies involving police violence in cities such as Ferguson, Missouri and Charleston, South Carolina have put the issue of police use of excessive force on the map. This note will argue that Computer-Assisted Dispatch (CAD) systems in large cities with high rates of violent crime should be improved to incorporate a risk-management system. The risk-management system would require a risk-rating from both the dispatcher projecting the expected level of violence of an emergency and the police officer reporting back on the level of violence used following the incident. This prevention mechanism in the CAD system would prevent officers from being dispatched from back-to-back violent incidents, and thus would minimize the violent triggers brought out by Post-Traumatic Stress Disorder and decrease the chance for the use of excessive force.

Communications Law: Annual Review

By the Staff of the Federal Communications Law Journal:

• ACA INT’L V. FCC
  by Ali Kingston
• ALEXANDER V. VERIZON WIRELESS SERVS. LLC
  by Laura Nowell
• ALL AMERICAN TELEPHONE COMPANY, INC. V. FCC
  by Senrui Du
• FTC V. AT&T MOBILITY LLC
  by Millicent Usoro
• LATNER V. MOUNT SINAI HEALTH SYSTEM, INC.
  by Kimberly Hong
• NUEVA ESPERANZA, INC. V. FCC
  by Brooke Thompson
• PRESS COMMUNICATIONS, LLC V. FCC
  by Kimberly Hong
• SNR WIRELESS LICENSE CO, LLC V. FEDERAL COMMUNICATIONS COMMISSION
  by Tess Macapinlac
• UNITED STATES V. THOMPSON>
  by Senrui Du