Exploring New Approaches to Unsettled Legal Questions

Tag: National Telecommunications and Technology Competition

The Inadequacy of Brandenburg’s Imminence: Incitement Regulation in the Internet Era

by Matthew Uvas*

Cer­tain class­es of speech are deemed to be so dan­ger­ous that they fall out­side of the pro­tec­tions of the First Amend­ment. Reg­u­la­tion of one such class, incite­ment, seeks to pre­vent speech which would encour­age law­less and vio­lent action. The mod­ern test for whether speech qual­i­fies as incite­ment hinges upon whether the speech is like­ly to pro­duce immi­nent law­less action. How­ev­er, when hate­ful or vio­lent speech is spread online, there may be a delay from when a post is made to when some­one sees it and responds vio­lent­ly. There­fore, in these cas­es, immi­nence may not be an appro­pri­ate mea­sure for iden­ti­fy­ing incite­ment lan­guage online. This Con­tri­bu­tion argues that his­to­ry, case law, and oth­er First Amend­ment jurispru­dence sug­gests shift­ing focus to con­text rather than immi­nence when reg­u­lat­ing online incitement.

A Growing Need for Data Privacy Protection: Federal Preemption in the Data Privacy Arena

by Mark Van­den­berg*

Data pri­va­cy is a bur­geon­ing con­cern for the Unit­ed States because fed­er­al telecom­mu­ni­ca­tions law was last mean­ing­ful­ly updat­ed in 1996. The sheer amount of data col­lect­ed about people’s pri­vate lives—which is now often pub­licly available—was sim­ply unimag­in­able to law­mak­ers at that time. In the face of fed­er­al inac­tion on this prob­lem, states have begun to move for­ward with their own data pri­va­cy pro­tec­tion laws, lead­ing to ques­tions regard­ing fed­er­al pre­emp­tion. In this Con­tri­bu­tion, Mark Van­den­berg (’22) argues that nei­ther field nor con­flict pre­emp­tion stand in the way of states work­ing to pro­tect their cit­i­zens with more robust data pri­va­cy laws and regulations.

COVID Era Regulations in the Absence of Federal Coordination: How the Dormant Commerce Clause Can Co-Exist with Effective State Contact Tracing Regulations

by Ken­neth R. Brown*

Con­tact trac­ing emerged dur­ing the begin­ning of the COVID-19 pan­dem­ic as an impor­tant tool to reduce the spread of COVID-19. The use of cell phone appli­ca­tions pro­vides a method to effec­tive­ly trace poten­tial expo­sures since most indi­vid­u­als car­ry cell phones that can eas­i­ly gath­er the nec­es­sary data. The fed­er­al gov­ern­ment has thus far failed to intro­duce its own reg­u­la­tions regard­ing the large vol­ume of data that can be col­lect­ed dur­ing con­tact trac­ing efforts or attempt to help coor­di­nate the reg­u­la­tions of the indi­vid­ual states to ensure con­sis­ten­cy; paving the way for a patch­work sys­tem of rules to gov­ern, as each state is left to for­mu­late its own method to pro­tect the health and pri­va­cy of its res­i­dents. How­ev­er, due to the vol­ume of inter­state trav­el and dif­fi­cul­ty of restrict­ing appli­ca­tion usage based on state bor­ders, states must be care­ful not to run afoul of the so-called “Dor­mant Com­merce Clause” of the Unit­ed States Con­sti­tu­tion. In this Con­tri­bu­tion, Ken­neth Brown (’22) argues that it is pos­si­ble for a state to effec­tive­ly reg­u­late con-tact trac­ing appli­ca­tions with­out vio­lat­ing the Constitution.

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