Issue 75; 2022-2023 • Issue 2
EDITOR’S NOTE
The Federal Communications Law Journal is proud to present the second Issue of Volume 75. We are the nation’s premiere communications law journal and the official journal of FCBA: The Tech Bar hosted at The George Washington University Law School. We are excited to feature a practitioner Article and four student Notes which provide analysis and insight into a range of policy questions facing the telecommunications field today.
This Issue begins with an Article written by Kal Raustiala, a Promise Institute Distinguished Professor of Comparative and International Law and the Director of the UCLA Burkle Center for International Relations. Raustiala explains why the Obama administration chose to relinquish formal federal government control over the naming and numbering system of the Internet, surrendering this authority to the non-profit Internet Corporation for Assigned Names and Numbers (“ICANN”). Raustiala goes on to detail the implications for multistakeholder governance throughout international law.
The first student Note, written by John Bogert, takes a market approach to stopping misinformation. Bogert proposes a statutory cap for social media market mergers under the Clayton Antitrust Act and argues against current proposals for reforming Section 230. In the second Note, author Julia Wells provides an overview of telehealth services—an industry that became increasingly important during the pandemic. Wells argues both that the FCC should be given broader authority to regulate these services and that HIPAA should be reformed to increase flexibility and prevent data breaches.
The third Note, authored by Nicolas Florio, explains how current bankruptcy law can provide a guide for strengthening the FCC and FTC’s collection of consumer fraud penalties. Florio proposes modifications to the way consent decrees are drafted which would strengthen the agencies’ enforcement powers and ultimately improve security across the telecommunications industry. The final Note in this Issue, written by Rebecca Roberts, presents the benefits and potential harms that arise with the use of post-mortem digital cloning. Roberts explores this unique intersection of probate law and artificial intelligence and argues that requiring explicit, affirmative consent from a decedent prior to their death is the best way to protect against unauthorized use of this technology.
The Editorial Board of Volume 75 would like to thank the FCBA and The George Washington University Law School for their continued support of our Journal. We would also like to acknowledge the contributions of the authors and editors who worked on this Issue. The Federal Communications Law Journal is committed to providing its readers with in-depth coverage of relevant communication law topics.
We welcome your feedback and encourage the submission of articles for publication consideration. Please direct any questions or comments about this Issue to fclj@law.gwu.edu. Articles can be sent to fcljarticles@law.gwu.edu. This Issue and our archive are available at http://www.fclj.org.
Julia Dacy
Editor-in-Chief
Article
Multistakeholder Regulation and the Future of the Internet
By Kal Raustiala
The Internet is the most significant global political and economic resource of our time. States increasingly seek to control it and bend it to their purposes. Nonetheless, in a surprising and controversial move in 2016, the Obama administration yielded control over the architecture of domain names and IP numbers that makes the Internet work to the Internet Corporation for Assigned Names and Numbers (“ICANN”), a non-profit organization headquartered in California. This action creates a puzzle for theories of international law and organization. Existing accounts of international organization often focus on theories of delegation and principal-agent models to explain why international organizations are created and how they work. Using these theoretical lenses, this Article explores the unusual case of ICANN and in particular its “multistakeholder” regulatory model, in which a wide variety of actors, not just governments, regulate central aspects of the complex global resource we know as the Internet. This Article argues that while ICANN began as a standard story of delegation to a regulatory agency, it morphed into something much closer to a trusteeship model. In part, this evolution was driven by the fear that multilateral control of the Internet—that is, control via a conventional state-led international organization such as the International Telecommunications Union—would throttle the Internet as we know it. The federal government, fearing this multilateral outcome, chose to relinquish its control and double down on multistakeholder regulation. The experience of ICANN is not only important for understanding the present and future of Internet regulation; it is also relevant for broader shifts underway in international law from multilateral processes to multistakeholder processes.
Notes
Monopolies of Misinformation: How Competitive Markets Can Improve Public Dialogue
By John Bogert
This Note frames online misinformation as a symptom of an anticompetitive social media market, one where powerful firms exploit their market power and Section 230 protection to avoid addressing the spread of misinformation on their platforms. By framing misinformation as a consequence of market failure, this Note argues to restore competition by establishing a statutory market concentration ceiling for social media market mergers under Section 7 of the Clayton Antitrust Act. This solution is—at present at least—a preferable alternative to anti-misinformation Section 230 reform efforts because the latter is a more politically divisive, constitutionally vulnerable, and potentially counterproductive solution than the former.
A Digital Checkup on HIPAA: Modernizing Healthcare Privacy Standards for Telehealth Services
By Julia Wells
This Note explores the current regulation of telehealth services and its potential issues for patient privacy. During the COVID-19 pandemic, the Department of Health and Human Services relaxed its enforcement of HIPAA violations in order to promote public health and prevent in-person exposure between patients and medical personnel. This relaxed enforcement poses security risks to patients’ private health information. This Note argues that HIPAA, both before and during the pandemic, does not address all of the risks to patient privacy. This Note further argues that HIPAA should be reformed to maintain its flexibility regarding which video platforms can be used for telehealth care while mandating specific security measures and including guidance on best practices.
Some Added Security: Applying Lessons from Bankruptcy Law to Strengthen the Collection of Consumer Fraud Penalties
By Nicolas A. Florio
The FCC and FTC’s struggles to collect their consumer fraud penalties are notorious within the telecommunications industry. Mass market consumer fraud consequently runs rampant among the largest telecommunications providers, leaving tens of millions of Americans constantly at risk of injury. Sensational headlines that boast hefty penalties fail to convey that the collection process is a long and uncertain road. That road gets even longer and more uncertain in bankruptcy. Recently, a Chapter 11 bankruptcy case revived awareness of a shortcoming in the United States Bankruptcy Code that may allow for FCC and FTC consumer fraud penalties to be discharged. This issue raises concern that telecommunications providers may use bankruptcy spinoffs to evade future penalties. However, there may be a practical way to use bankruptcy mechanisms to the FCC and FTC’s advantage. This Note argues that by modifying the way the FCC and FTC issue their consumer fraud penalties, the agencies can not only protect their claims in bankruptcy but strengthen their overall ability to collect their fines and disincentivize default.
By Rebecca J. Roberts
As artificial intelligence technology improves and expands, synthetic media known as “digital clones” and “deepfakes” have begun to emerge. This technology manipulates currently existing media of a person to create a hyperrealistic digital replica manifested as a video, audio clip, chatbot, or hologram. The digital replicas can be programmed to do and say things that their real counterpart has never done or said and are sometimes so incredibly lifelike, it seems as though they are real. Due to the high volume of digital media taken and accumulated during one’s lifetime, these digital clones can even be produced post-mortem—in essence, digitally resurrecting someone and putting words in their mouth that they never said while still alive. This technology is distinctly new. Aside from a few state statutes criminalizing certain extreme instances of deepfake technology, any kind of potential remedy against unauthorized digital cloning remains unknown and untested. Many of these potential remedies would require an invasion of privacy or showing of harm. However, courts have consistently held that privacy rights and harm are not retained after death. Even with the few possible remedies that could protect against unauthorized digital cloning, none would protect against unauthorized post-mortem digital cloning. This Note argues that modern estate planning should include a digital legacy clause, dictating how one’s digital assets should be used after they die. Legislators should also extend existing probate statutes to require explicit permission from someone, prior to death, to allow for post-mortem digital cloning.