PLS 780 Week 2

Agenda

• Government regulation of the internet• Privacy rights online

Pre-Regulated Internet

• What do you think this looked like?• Widely used?• What activities do you think took place that might

have been problematic?

Regulatory Methods

• Law (statues, regulations and case law)• Markets (e.g. concerns about privacy, moral

correctness, socially acceptable behaviors etc.)• Funding sources (e.g. venture capital and

fundraising for viable business models)• Technology (e.g. encryption of digital content)

Antitrust Law

• Sherman and Clayton Acts limit cartels and monopolies

• Prohibit price discrimination• Prohibits interlocking directorates or being on the

board of a competing company

Tying

• Antitrust principle that is frequently applied to online/technology users

• Limits the sale of one good or service conditional to the purchase of another

• Apple and AT&T: Purchase of iPhone originally dependent upon buying AT&T service; Classic tying behavior. Did this arrangement violate rules of fairness?

• Why did the district court in In re Apple & AT&T reject Apple’s argument that no unfair tying took place?

Comcast v FCC

• What happened in this case?• Has the FCC’s regulatory authority kept place with

evolving technology? What does this case represent with regards to that question?

• If Comcast carries over 70% of all high speed internet traffic is it a monopoly?

• If Google carries over 70% of all search traffic is it a monopoly?

Net Neutrality

• What is it?• Why does it matter so much?• How was it established?• Where does it stand currently?• What role does the recent Verizon case play in it?• Where do we go from here? • Was the FCC right?

Net Neutrality

• The principle that all movement and content on the internet should receive equal treatment

• Key principle of government regulation of the internet

• Is it sound? Should the government exercise regulatory power to ensure that all information transmitted over the internet is treated equally?

FCC Open Internet Order 2010

• FCC is committed to preserving an open internet• That means several things including

• Transparency• No blocking of content• No unreasonable discrimination of content

Verizon v FCC

• What did this 2014 case do to the FCC’s open internet rules?

• What happened in this case?• What did the court hold?• Was the decision correct in your opinion? • What role does the idea of ISP as a common carrier

play in the decision?• This decision is a huge win to ISPs. It effectively

allows them to have it ‘both ways’. Why?• Why do you think the appeals court side-stepped the

bigger issue her?• Why did the FCC side-step the bigger issue here?

Taxation

• Fiscal policy/taxation• Does the old ‘nexus’ rule apply in cyberspace?• What does the Quill case tell us about the definition of

a retailer? Borders Online v State Board of Equalization? Geoffrey v. Commissioner? (in groups of 3 present these cases)

• States want to collect taxes on this economic activity; Should they? Why or why not?

• Recent developments: 50 state guide

Content Regulation

• Should content be regulated?• Is there a difference between user generated

content and other content? What policy considerations are at play here?

• Is the Communications Decency Act a successful statues? It was meant to regulate obscenity in cyberspace? The internet went dark that day in 1996

• Eventually held unconstitutional by Reno v ACLU• Now it prevents ISP or website liability for content

related torts. Why? Barnes v. Yahoo (websites are not publishers)

Privacy

• Constitutional protection (implied)• Well established line of case law indicates that we

have a right to privacy when we (society) would reasonably expect it combined with an individual’s demonstration of an expectation of privacy

• Technology and privacy: How would you characterize the relationship? Jones provides some indication…

• Katz: Expectation of privacy• Jones: Physical trespass too

Privacy and Online Activities

• Common law torts for invasion of privacy• Intrusion upon seclusion• Public disclosure of private facts causing injury to

reputation• Publicly placing another in a false light• Misappropriation of a person’s name or likeness

causing injury to reputation

Federal Data Privacy Laws

• Piecemeal approach• Privacy Protection Act• Privacy Act of 1974• Cable Communications Policy Act• Video Privacy Protection Act• Telephone Consumer Protection Act• Electronic Communications Privacy Act• Fair Credit Reporting Act• Graham Leach Bliley• Health Insurance Portability and Accountability Act• Children’s Online Privacy Protection Act• Controlling the Assault of Non-Solicited Pornography and Marketing

Act• As well as state specific laws• Why so many?!?!

Behavioral Advertising

• Primarily self-regulated• Established by terms and conditions of use• Self regulatory principles (p 385); Are they

adequate?• Federal Trade Commission has been very reluctant

to get into this fight. Why?

Privacy at Work

• Previously we understood workplace privacy as pretty much non-existent

• Stengart changed that. How?• What policy considerations are there for enhanced

privacy at work?

Finally

• Boring v. Google• Similar to Causby? Why or why not?