What’s the deal with fast-track authority?

By on February 7, 2014 in Copyright, Internet, Transparency

Text Definition of Fast Track Authority

Back in November, The New York Times editorial board endorsed the Trans-Pacific Partnership (TPP), a trade agreement involving 12 countries in the Americas and the Pacific Rim that is being negotiated by the Obama Administration. The agreement contains sections covering a broad number of policy topics, including a chapter on intellectual property. At that time, I put together a brief post about the agreement and potential bipartisan opposition to it in Congress. Since then, Senators Max Baucus (D-MT) and Orrin Hatch (R-UT), along with Rep. Dave Camp (D-MI), have proposed the Bipartisan Congressional Trade Priorities Act of 2014 to grant the Obama Administration “fast-track” trade authority. This legislation would allow the administration to negotiate the TPP and other agreements (although negotiations are already in progress) and place them before Congress for blanket approval or disapproval without amendments or filibusters. This has ignited a debate about the roles played by Congress and the White House in negotiating trade agreements. Senate Majority Leader Harry Reid (D-NV) publicly announced his opposition to fast-track, putting him at odds with President Obama, Secretary of State John Kerry, and Secretary of Defense Chuck Hagel. But what exactly is fast-track trade authority?

The Commerce Clause of the United States Constitution gives Congress the exclusive power to “regulate commerce with foreign nations.” Under fast-track trade authority, also known as trade promotion authority, Congress maintains its constitutional oversight of foreign trade, but cedes the nuts and bolts of crafting trade agreements to the executive branch. The Nixon administration was the first to pursue fast-track, though it was not enacted until Congress passed the Trade Act of 1974 under President Ford. Originally, fast-track was only approved through 1980, but it was repeatedly extended until the signing of the North American Free Trade Agreement in 1994. Congress denied President Clinton fast-track Authority in 1998, but granted it to President George W. Bush from 2002 to 2007. Despite the expiration of fast-track trade authority just prior to Obama’s first term, he was also able to utilize it in trade agreements with Colombia, South Korea, and Panama because those deals had been penned by the previous administration prior to the authority’s expiration.

Currently, fast-track is regularly mentioned alongside the TPP, as if the Bipartisan Congressional Trade Priorities Act of 2014 would apply only to that particular treaty. In fact, the Act authorizes fast-track for four years with a potential three-year extension for the next presidential administration. According to the official website for the United State Trade Representative, the TPP is not the only trade agreement in the works. U.S. representatives are working on a similar agreement with Europe, the Transatlantic Trade and Investment Partnership (TTIP). If granted, fast-track would be applicable to this and other forthcoming trade agreements.

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Bloggers Receive Same Constitutional Protection as Traditional Press in Defamation Claims, Rules 9th Circuit Court of Appeals

By on January 18, 2014 in Journalism

KeyboardThe 9th Circuit Court of Appeals ruled Friday that bloggers receive the same First Amendment protection as traditional members of the press when facing defamation charges. Writing the majority opinion, Judge Andrew Hurwitz held that, “[t]he protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities . . . [because] in defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.”

The plaintiffs, Obsidian Finance Group and its co-founder Kevin Padrick, sued blogger Crystal Cox for defamation after Cox wrote about the plaintiffs’ allegedly fraudulent conduct on her blog. Cox’s blog states that she is dedicated to, “Exposing Obsidian Finance Group and Kevin D. Padrick for Abuse of his Power as Trustee in the Summit Accomodators.” The defamation claim cites a number of Cox’s blog posts regarding the plaintiffs’ alleged bankruptcy code violations. Cox’s blog claims the plaintiffs were involved with corruption, deceit on the government, and money laundering, among other claims.

The court, citing Gertz v. Welch, held that the plaintiffs had the burden of proving negligence for their defamation claim despite the fact that Cox is not an institutional media defendant. Judge Hurwitz distinguished between matters of private and public concern, holding that Cox’s allegations are a matter of public concern as the post concerned alleged fraud upon Obsidian’s investors and the blog post was published to “the public at large.”

The case was on appeal from a December 2013 judgment ruling for the plaintiff in which Cox was ordered to pay $2.5 million for damages sustained by the plaintiff.

Samantha Scheller is a 2L at the UNC School of Law.

(Photo courtesy of Flickr user orangeacid, licensed under a CC BY-SA 2.0 license.)

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A UNC Student’s Summer Experience at the Chilling Effects Clearinghouse, a Project of the Berkman Center for Internet and Society

By on January 14, 2014 in Copyright, First Amendment, Internet

Berkman Center LogoLet me start by saying that I really like information. Numbers, lists, facts, data, trivia. I like them all. I’m an information junkie. I also happen to love the First Amendment. Given this, it’s not surprising that I was so excited to spend this past summer interning with the Chilling Effects Clearinghouse at the Berkman Center for Internet & Society. Chilling Effects collects threats to free expression online, mostly in the form of DMCA take-down notices and similar intellectual property infringement claims, although Chilling Effects receives notices of other threats to free speech as well. All of that information is compiled into a searchable database. Being able to work with Chilling Effects, to explore this database, and to see “under the hood” was a great way to combine my interest in data with my passion for the First Amendment.

The summer was jumpstarted with a joint project involving myself and the two other Chilling Effects interns. Our task was to track down questionable trademark infringement claims in the database. We sorted through hundreds of these claims, looking to see if the people who filed them had concerns beyond trademark infringement — for example, someone whose real issue might be closer to a defamation claim than a trademark claim, but the latter might more quickly and effectively take down the content in question, since defamation claims can be costly to pursue and difficult to win. In other words, we scoured the database looking at potentially fraudulent trademark infringement claims that were being used to stifle free expression online. Once we wrapped up our search we worked with Jeff Hermes at the Digital Media Law Project to turn our findings into content for a presentation he was giving. One of the best parts of summer at the Berkman Center was a project like this one because I got to work with the other interns, all of whom were passionate, curious, and eager to spend the summer researching and working on a variety of Berkman projects.

On top of working with these great people, interns attended weekly presentations by leaders in the technology and policy fields. One week we got to hear from NYU privacy scholar Helen Nissenbaum, who spoke about transparency and privacy issues in accessing online court records. Earlier in the summer many of us attended a book launch for ReWire: Digital Cosmopolitans in the Age of Connection by Ethan Zuckerman of the MIT Center for Civic Media. But perhaps the most fun “intern hour” was an interactive demonstration of Google Glass. We might have looked ridiculous, but we loved being among the first to check out this new wearable computing technology.

The summer flew by. When news broke about the NSA’s PRISM program, I started reading everything I could about the issue and turned my research into a blog post featuring a timeline of Edward Snowden’s leaks and related news about the program. The best part about the blogging for Chilling Effects was that I got to use the Chilling Effects database to add color, facts, and figures to the stories that were already out there. For example, when Twitter released it’s annual Transparency Report in July, I combined their reported data with information stored in the Chilling Effects database. By layering the Chilling Effects’ data on top of Twitter’s, it was easy to start to see the bigger picture for how Twitter handles attempts by countries to censor tweets or account holders.

My summer internship at the Berkman Center gave me the opportunity to work with an area of the law that I am passionate about and introduced me to dozens of new friends and peers who are equally excited about the future of technology, law, and policy. It was by far the most exciting and memorable summer I’ve had and it was an honor to work with some of the world’s leading tech and policy thinkers. Summer 2014 Berkman Center internship applications just opened up and are being accepted until February 16.  If you’re interested applying you can find more information on the Center’s Internship page here.

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Appeals court (mostly) strikes down net neutrality rules

By on January 14, 2014 in FCC, Internet

The D.C. Circuit today held that the Federal Communications Commission’s network neutrality nondiscrimination rules were invalid because the FCC lacked the authority to regulate how Internet providers treat content. The “Open Internet” rules, passed in 2010, required ISPs to treat all Internet content equally. Under the rules, a provider such as Verizon could not block or slow down certain Internet content or allow companies to pay for their content to be delivered faster. The Court said that the FCC can only impose such regulations on common carriers, such as telephone companies, and that ISPs are not common carriers. Read the opinion here.

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New Center Video Gallery Launched

By on January 9, 2014 in Journalism

Since 2009, the Center has been holding a variety of events and workshops. Whenever possible, we live-stream and make archive video available on each event’s individual page. To make it easier to find these videos, we have compiled all of our event videos into a gallery so our community of users can easily browse and view footage of the diverse programs that we offer. It is our goal that this collection, which includes public addresses by scholars like Harvard Professor Lawrence Lessig, media executives like NBC News President Ben Sherwood, and public officials like former FCC Commissioner Michael Copps, will inspire lively discussions amongst those interested in the relationships between communication and government policy. We encourage you to check out the gallery and welcome your feedback.

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