Volume 73.2 Full Issue

Welcome to the second Issue of Volume 73 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). This Issue showcases the breadth of scholarship in telecommunications and technology law, spanning from broadband regulation to information privacy to the regulation of e-commerce.

This Issue begins with an article authored by Jonathan E. Nuechterlein and Howard Shelanski examining proposed broadband regulation, ultimately cautioning that the proposals fail to identify real market failures and are too costly. Nuechterlein and Shelanski argue that the government can address real market problems, such as digital divides by expanding targeted subsidy mechanisms.

This Issue also features four student Notes. In the first Note, Hunter Iannucci illustrates the inability of current legal mechanisms to protect the informational privacy rights of transgender public figures. Iannucci argues that the European Union’s right to be forgotten law can be constitutionally replicated in the U.S. to allow transgender public figures to remove online information about themselves inconsistent with their gender identities. In the second Note, Olivia T. Creser addresses consumer harm online and the now common call to break up Big Tech. Creser provides a counterproposal, that Section 5 of the Federal Trade Commission Act can be amended to protect consumers. In the third Note, Brooke Rink discusses the online mugshot industry. Rink argues that Congress may act to limit the release of such images and that exploitative websites may be further regulated through a modification to Section 230. In the final Note, Shuyu Wang describes the challenge of regulating counterfeit merchandise sold through Chinese social media platforms. Wang proposes that those social media platforms with in-app shopping features fall under the regulation of e-commerce platforms to allow better trademark enforcement in China, a model that could shed light on the recent U.S. proposal seeking to combat online counterfeits: the SHOP SAFE Act.

We thank the FCBA and The George Washington University Law School for their continued support. This Issue marks one year into the COVID-19 pandemic which posed unique challenges for the Journal, including the cancellation of our 3rd Annual Spring Symposium in 2020, but brought new opportunities, like our partnership with the Berkeley Center for Law & Technology for our joint virtual Spring Symposium in 2021. We thank our all our contributors for their work during this remarkable year.

The Journal is committed to providing its readership with rigorous academic scholarship and thought leadership in relevant topics in communications and information technology law. Please send submissions to be considered for publication to fcljarticles@law.gwu.edu. All other questions or comments may be directed to fclj@law.gwu.edu. This Issue and our archive are available at www.fclj.org.

Elissa C. Jeffers

Editor-in-Chief

Articles

Building on What Works: An Analysis of U.S. Broadband Policy

By Jonathan E. Nuechterlein & Howard Shelanski

Issued ten years ago, the FCC’s National Broadband Plan was in many respects a case study in regulatory humility. It recognized that broadband progress was “[f]ueled primarily by private sector investment and innovation”; that “government cannot predict the future”; that “the role of government is and should remain limited”; and that policymakers should thus focus not on imposing price controls or behavioral restrictions, but on “encourag[ing] more private innovation and investment.” This advice, which the FCC has generally followed, has fared well under the test of time. Ten years and hundreds of billions of investment dollars later, the broadband marketplace now offers consumers more choices and exponentially faster speeds than it did then.

Against that backdrop, this paper analyzes the asserted need for, and likely consequences of, four types of broadband regulation proposals in recent circulation: (1) facilities-sharing obligations; (2) retail price controls; (3) internet interconnection obligations; and (4) amorphous and open-ended ISP conduct rules like those the FCC imposed in 2015. For the most part, we see little merit to any of these proposals under current market conditions. None of them is needed to address any identifiable market failure, and each would impose significant costs, including the investment-chilling prospect of regulatory creep.

That said, government retains a critical role to play in the broadband marketplace. Market forces are unmatched in their power to bring the greatest benefit to the greatest number. But market forces by themselves will not help America close two stubborn and unacceptable digital divides: between rich and poor, and between urban and rural. These are real, universally acknowledged problems that call for real solutions. In particular, they call for expanded subsidy mechanisms—one directed to low-income subscribers and the other to broadband providers that commit to new infrastructure deployment in rural and other high-cost areas. But the challenge of closing these digital divides does not even logically support a call for more intrusive regulation of the broadband industry. To the contrary, such regulation would, if anything, make the underlying problems worse by placing a thumb on the scale against additional broadband investment.

Notes

Erasing Transgender Public Figures’ Former Identity with the Right to Be Forgotten

By Hunter Iannucci

The law in the United States does not adequately protect privacy rights for transgender public figures. In light of the stigma and violence perpetuated against transgender individuals, as well as their dignity interests in actualizing their gender identities, transgender persons have unique privacy interests in maintaining confidentiality of their personal information, such as their birth names and assigned sex at birth. Transgender people might seek to protect this personal information through the tort of public disclosure, which punishes publication of this private, personal information. But the public disclosure tort only goes so far in protecting information privacy due to the newsworthiness test and public figure limitations, which pose a problem for transgender public figures in particular, who are most susceptible to these limitations. This Note argues transgender public figures need a mechanism not only to sanction the revelation of their personal information, but to allow them to “delete” this information from online articles to enable them to legitimize their true gender identities and repudiate their former selves. It proposes importing the EU’s right to be forgotten to create such a mechanism, and concludes by arguing that speech and press freedoms––though believed to be the cornerstone of American democracy––should yield to this weighty privacy interest to both honor transgender individuals’ gender identities and safeguard them from stigma, discrimination, and violence.

In Antitrust We Trust?: Big Tech Is Not the Problem—It’s Weak Data Privacy Protections

By Olivia T. Creser

“Break Them Up” has become a rallying cry for politicians, policymakers, and academics alike who are fed up with the power of Big Tech. They believe that too much power in the hands of too few has caused much of the discontent online today, particularly as a result of consumer exploitation, manipulation, and privacy violations, and so, the movement aims to take back the spoils of what Louis Brandeis called the “curse of bigness.”

However, the movement to break up Big Tech misidentifies the cause of consumer harm online. It is not because Big Tech is too big, rather it is because data privacy protections are too weak. This is the result of decades worth of Internet growth with little to no concern for consumer protections. Consumers are worse off because the government fails to balance economic growth with consumer protection. This Note will propose a path forward for the Congress to begin finding that balance.

By amending Section 5 of the Federal Trade Commission Act to make illegal practices that are unfair and deceptive according to the reasonable expectations of an ordinary consumer, Congress will empower the FTC to bring more enforcement actions that are in the public interest. The FTC is already the leading enforcement agency for consumer privacy, and this amendment will give it much needed support for addressing harms online that often shock the public because the practices are not what people generally expect. This amendment will also allow the Internet ecosystem to continue to self-regulate. While this amendment will not fix all the problems arising online, it is a jump-start to rectifying lack of balance, that today is misconstrued as a “curse of bigness.”

If a Picture Is Worth a Thousand Words, Your Mugshot Will Cost You Much More: An Argument for Federal Regulation of Mugshots

By Brooke Rink

This Note develops arguments for congressional regulation of mugshots in light of the online mugshot extortion industry. At the federal level, the disclosure of mugshots is already considered an unwarranted invasion of privacy. Further, caselaw dating back to the beginning of the 20th century recognizes the privacy interests in mugshots, especially for those who are not ultimately convicted of a crime. Although Congress may not have been able to regulate the release of mugshots by state agencies thirty years ago, the Internet and companies like Mugshots.com created the hook necessary for congressional regulation. This Note proposes (1) limiting the release of mugshots until after a person’s successful criminal conviction, and (2) modifying Section 230 of the Communications Act so courts can order search engines to remove links to websites with exploitative removal practices.

A Chinese Lesson in Combatting Online Counterfeits: The Need to Place Greater Obligations on Social Media as They Transform to E-Commerce Platforms

By Shuyu Wang

Social media have become important outlets for luxury brands to promote brand visibility and reputation. While brands enjoy the convenience of real-time interaction with a large base of social media users, counterfeiters also take advantage of social media platforms to facilitate sales of fake products. Preventing counterfeit sales on social media is now a major challenge to brands, and this problem is exacerbated in the Chinese market due to the great difference between China’s and U.S.’ social media ecosystems. Many Chinese social media platforms implement in-app shopping malls and welcome third-party merchants to settle in the market. By embedding an in-app checkout feature on their platforms, Chinese social media create a closed-up environment for business transactions, which increases the difficulty for brands to monitor their trademarks online. China has been experimenting with the cyber-courts and the E-Commerce Law to better regulate the e-commerce field, but at present, both efforts fall short to address the counterfeit problem on social media. This Note proposes an amendment to China’s E-Commerce Law to include social media platforms with in-app shopping features in the scope of e-commerce platforms, and thus place more obligations on social media platforms to assist with online trademark enforcement. Because combatting online counterfeits is a global issue, this Note also suggests that China’s legal reform in the e-commerce field may provide some foresight for such practice in the United States.