Volume 75.3 Full Issue
Welcome to the third and final Issue of Volume 75 of the Federal Communications Law Journal. This year, we have had the opportunity to highlight a number of important topics within the communications law field and this last Issue is no exception.
First, Philip Napoli and Chandlee Jackson introduce an approach to tackling disinformation and hate speech on social media that is informed by the way indecency has been regulated in the broadcast medium. Napoli is the Director of the DeWitt Wallace Center for Media & Democracy at Duke University. Jackson is a graduate of the Sanford School of Public Policy, where he earned his Masters’ Degree and conducted research on the impact of disinformation on national security.
This Issue also features three student Notes. The first Note, written by Alan Harrison, discusses the right to delete, a data privacy measure that aims to give consumers greater control over their personal data. Harrison argues that, in its current form, the right to delete is too limited by exemptions and a lack of uniformity in its implementation to be fully effective.
Our second note, authored by Jamie Reiner, applies philosopher Martha Nussbaum’s Capability Approach to human development to emphasize that internet access is essential to an individual’s ability to flourish. With this in mind, Reiner argues that the government has a positive obligation to promote widespread Internet access.
The third note, written by Julia Dacy, explains that the existing framework for protecting journalists and their confidential sources is riddled with loopholes, especially regarding the government’s ability to seize communications metadata. Dacy argues that the increasing usefulness of metadata in leak investigations makes a federal shield law with specific and strong metadata provisions vital to the existence of a free press.
This Issue also features our Annual Review of notable court decisions that have impacted the communications field in recent years. Each of these was authored by a member of our Journal, and we appreciate their thoughtful analyses of these important cases.
On behalf of the outgoing Editorial Board of Volume 75, I would like to thank The George Washington University Law School, our faculty advisors, and the Federal Communications Bar Association for their continued partnership. To the 2022-23 Editorial Board, Associates, Members and authors who contributed to the Federal Communications Law Journal this year, thank you for your dedication and quality work.
Finally, congratulations to the incoming Volume 76 Editorial Board. It’s been an honor to oversee this publication for its milestone 75th Volume, and I am confident the Journal is in capable hands going forward.
As always, we welcome your feedback and questions. Please send any article submissions to fcljarticles@law.gwu.edu. This Issue will be archived and available at www.fclj.org.
Julia Dacy
Editor-in-Chief
Articles
Revisiting Indecency: Considering a Medium-Specific Regulatory Approach to Disinformation and Hate Speech on Social Media
By Philip M. Napoli & Chandlee A. Jackson
This Article considers whether there are aspects of broadcast indecency regulation that are relevant to policy deliberations about disinformation and hate speech on social media. Indecency is unique in that policymakers created a category of speech exclusive to the legal and regulatory context of a specific medium. This Article considers whether disinformation and hate speech could similarly be carved out as categories of speech that receive less First Amendment protection exclusively within the social media context. Such an approach could clear a path for modest government interventions directed at imposing greater accountability and responsibility on social media platforms.
Notes
Where Next for the Right to Delete: Stepping Out of the Shadow of the Right to be Forgotten
By Alan Harrison
As States continue to pass new general privacy laws, the right to delete gains further traction. However, the right remains largely undefined with more questions than answers as to its effectiveness and implementation. This Note will focus on first clearly defining the right to delete by distinguishing it from the right to be forgotten. This step is necessary, as there is still an ongoing conflation of the two similar but distinct rights. Whereas the right to be forgotten treats the act of deletion as a mechanism to achieve the substantive goal of the digital forgetting of data (akin to human memory’s natural retention limitation), the right to delete views the act of deletion as the goal itself in order to increase consumer control over one’s personal data. This Note then shifts to issues in the current design of the right to delete that must be addressed to ensure the right achieves its potential within a privacy regime. The right to delete has the potential to help shift the balance of control over one’s personal data, but in its current form, it will have only a limited effect. In particular, the right to delete is undermined by a lack of consistency in deletion standards and an overly broad exemption for data that is deidentified.
The Individual as Both Capable and Needy: Internet Access Reimagined Under Martha Nussbaum’s Capability Approach to Human Development
By Jamie Reiner
Since its advent, the Internet has had an extensive presence in our lives. We seemingly need it for everything: connecting with our friends and family, joining a conference call, receiving medical advice, even for our day in court. The health emergency of the COVID-19 crisis only further entrenched everyday reliance on dependable, fast Internet. While for many of us, broadband access is a prerequisite for the functionality of our everyday lives, for many factions of society, high-speed Internet is neither accessible nor affordable. How does digital inequity show itself in the United States? What is being done to ameliorate the inequity? These questions raise a theoretical puzzle with practical significance—how should Internet policy be conceptualized, and what is the proper role of government within this schema? This Note argues for an understanding of the role of government in furthering broadband accessibility and affordability through an adoption of Martha Nussbam’s Capability Theory to Human Development. The upshot of this approach suggests that the United States government has a positive duty to expand Internet access. An actualization of this duty, and the ultimate goal of policy planning, will require marshaling creativity and innovation from those in the community—resulting in broader, more equitable affordibility and accessibility.
Straight to the Source: Shielding a Journalist’s Metadata with Federal Legislation
By Julia Dacy
In 2020, the Department of Justice ordered CNN to turn over metadata belonging to one of its reporters as part of a leak investigation. Several months later, Google received a similar order demanding email metadata from four New York Times journalists. Both organizations were bound by a gag order that prevented them from giving notice to the affected journalists, which raises serious questions about source protection in the digital age. Metadata is data that describes phone and electronic communications without providing the content of those interactions. Still, investigators can use the information metadata provides about the sender and recipient to uncover the identities of confidential sources. Since leak investigations often involve issues of national security, the Department of Justice is frequently not required to inform journalists of data requests, which deprives them of the chance to protect their sources. This Note argues that the best way to combat this issue is a federal shield law that protects journalists’ privacy and prevents the use of gag orders. The existing legal framework for protecting sources is a patchwork of state shield laws and Department of Justice guidelines that are riddled with loopholes. This Note further analyzes the inconsistent court decisions and constantly-changing agency policies to show why these laws are ineffective. Ultimately, with the increasing usefulness of metadata in leak investigations, the benefits of a federal shield law far outweigh any challenges that may arise.