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Students Presenting at AEJMC Conference in August 2014

By on June 4, 2014 in Copyright, First Amendment, Internet, Journalism, Transparency

AEJMC LogoThree Carolina students have had media law research papers accepted by the Law and Policy Division of the Association for Education in Journalism and Mass Communication (AEJMC) for presentation at the group’s annual conference in Montreal in August.  Congratulations!

These are the authors, theory paper titles, and their paper abstracts:

Kevin Delaney, a student in the dual-degree program earning a J.D. and a master’s in mass communication, wrote “Rube Goldberg-Like Contrivances and Broadcasting:  The Litigation Challenging Aereo.”

Abstract:  The broadcast industry has been abuzz over Aereo, a company that streams broadcast content without a license over the Internet to subscribers.  The nation’s broadcasters have sought to enjoin Aereo by arguing that Aereo’s service violates their right under the Copyright Act of 1976 to perform works publicly.  This paper explores Aereo’s service in the context of the public performance right and offers an argument for how courts should interpret the public performance right.

Kylah Hedding, a Roy H. Park Fellow and Ph.D. student in the UNC School of Journalism and Mass Communication, wrote “Does Access to Environmental Information have a Critical Problem?:  Interpretation of FOIA’s Exemption 4 after the Critical Mass III Decision.” This paper won a prize for being the second best student paper in the Law and Policy Division.

Abstract: The Environmental Protection Agency (EPA) is one of the top agencies to invoke Exemption 4 when denying FOIA requests, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” However, the exemption provides no definitions for these key terms, which has been problematic for federal agencies and forced the federal appeals courts to define them. The first major case to establish an Exemption 4 precedent was National Parks v. Morton decided by the District of Columbia Circuit in 1974. The second major case, which either clarified or overturned this precedent, depending on which legal scholar is writing about it, was Critical Mass v. NRC decided in 1992 by the same federal appeals court. This paper examines how Critical Mass v. NRC has influenced the interpretation of Exemption 4 by the federal appeals courts.

Brooks Fuller, another Roy H. Park Fellow and PhD. student in the J-School, wrote “Evaluating Intent in True Threats Cases:  The Importance of Context in Analyzing Threatening Internet Messages.”

Abstract:  Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black (2003), significant conflict emerged among the federal circuit courts. The primary issue is whether an objective or subjective standard should apply to statutes that criminalize threats.  Speakers’ use of social networking websites and Internet forums for the purposes of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modern modes of communication.  This paper utilizes legal research methods to examine federal courts’ treatment of Internet threats and highlights aspects of Internet speech that are particularly problematic for the doctrine.  Ultimately, this paper calls for the Supreme Court to revisit the true threats doctrine in light of significant inconsistency among the circuits regarding the impact of the Internet on recipients of threatening communications.
Papers for this national competition are double-blind reviewed, and student papers compete for acceptance on equal footing with faculty and co-authored papers.

All these paper were written for media law classes in the Journalism School.

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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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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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New FCC Chair to Industry: Unlock Customers’ Phones

By on November 15, 2013 in Copyright, FCC

tom wheeler The back-and-forth over regulation of wireless phones continues this week. New FCC Chairman Tom Wheeler asked the CTIA Wireless Association to recommend that its members, including AT&T, Verizon and other carriers, voluntarily allow consumers to “unlock” their wireless phones “when the applicable service contract, installment plan, or ETF [early termination fee] has been fulfilled” (Note that this would not help in-contract customers who want to unlock their phones for the purposes of using foreign carriers during international travel). He implied that he would push for FCC regulations forcing carriers to allow unlocking if the practice was not adopted voluntarily by the mobile phone industry.

This continues a decade of confusion for customers of U.S. carriers. In 2006, the Librarian of Congress, tasked every three years by the Digital Millennium Copyright Act (DMCA) to consider exemptions to anticircumvention rules, created an exemption allowing mobile phone owners to modify their phones “for the sole purpose of lawfully connecting to a wireless telephone communication network.” In 2007, hacker George Hotz successfully modified his Apple iPhone to connect to networks other than AT&T, which at the time was the only wireless carrier offering the iPhone. Apple, unable to sue Hotz due to the DMCA exemption, attempted to counter Hotz’s modifications by both sending out software updates that removed the exploited security flaws and threatening to void the warranties of modified phones. In 2012, the new Librarian of Congress declined to renew its exemption, making it illegal for consumers to unlock their phones. It is this 2012 prohibition by the Librarian of Congress that Chairman Wheeler opposes.

If the mobile phone industry does not self-regulate, it’s unclear how an FCC ruling in support of unlocking phones would play out, given that the DMCA authorizes the Librarian of Congress, not the FCC, to dictate exemptions to the Act’s anticircumvention rules. The Obama administration, responding to the Librarian’s prohibition, implied that Congress or the FCC should act to make phone unlocking legal again, implying that it would support the FCC in such a decision.

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A Not-So-Secret Pacific Trade Deal

By on November 14, 2013 in Copyright, Internet, Transparency
Over the last week, opposition to the Trans-Pacific Partnership has gone from a quiet rumble amongst policy wonks to a major struggle over free trade, intellectual property rights, and executive power. Here is a timeline of featured news stories and blog posts. Scroll to the bottom of the timeline for updates as they become available.
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