On October 23rd, 2014, we updated our
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• Government regulation of the internet
• Privacy rights online
• What do you think this looked like?
• Widely used?
• What activities do you think took place that might
have been problematic?
• 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)
• Sherman and Clayton Acts limit cartels and
• Prohibit price discrimination
• Prohibits interlocking directorates or being on the
board of a competing company
• Antitrust principle that is frequently applied to
• 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
• Why did the district court in In re Apple & AT&T
reject Apple’s argument that no unfair tying took
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
• 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?
• The principle that all movement and content on the
internet should receive equal treatment
• Key principle of government regulation of the
• 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
• No blocking of content
• No unreasonable discrimination of content
Verizon v FCC
• What did this 2014 case do to the FCC’s open
• 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?
• 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
• 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
• Eventually held unconstitutional by Reno v ACLU
• Now it prevents ISP or website liability for content
related torts. Why? Barnes v. Yahoo (websites are
• 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
• 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
• 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
• As well as state specific laws
• Why so many?!?!
• Primarily self-regulated
• Established by terms and conditions of use
• Self regulatory principles (p 385); Are they
• 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?
• Boring v. Google
• Similar to Causby? Why or why not?