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M E L D P. C AUL HOI LT ROWN LACK AKE C ARRY ARRY LAD A B B AILEY Articles Editors HIRIN OURNAL ON ON OURNAL RIC RAKE HRISTINE AWNYA Executive Editor ESKI H OULDEN J B NGELA EREDITH ACULTY B B B ENNIFER ATHERINE OUG OHN ENDRIA ANDYCE J AROLYN RISTIN ACHARY D ARAH K C M K F
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v . B.S., J.D., University of Nebraska. . B.S., Northwestern University;. B.S., Northwestern LL.B., OLORADO OLORADO Associate Dean for Academic Affairs and Associate Dean for
Nicholas Doman Professor of International , C , Professor Emeritus ., Faculty, 2010-2011 Faculty, Clinical Professor Emeritus, Legal Aid and , R Professor Emeritus Professor Professor Emeritus Professor Emeritus Assistant Dean for Admissions and Financial Aid and Financial Admissions Assistant Dean for , J
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vii Henry S. Henry and of Procedure Professor Lindsley , . B.A., Denison University; LL.B., Stanford . B.A., Denison University; LL.B., Associate University’s Distinguished Professor and Moses University’s Distinguished Professor and Director of Clinical Programs & Associate , , Clinical Professor Emeritus, Legal Aid and , , Associate Professor of Law Associate Professor of Law.
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30555_cdt_9-2 Sheet No. 6 Side B 08/09/2011 09:04:54 08/09/2011 6 Side B Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 7 Side A 08/09/2011 09:04:54 is Privacy and , the conference Privacy and the Press:
the everyday aggregation the conversation with an of the right to a free press. DITOR details about their personaldetails about their lives E
xiii ve paparazzi to five papers presented at the ROM THE ROM of privacy law are not equipped to deal withof privacy law are the F Journal on Telecommunications Law and High Technology conference, as well as a variety of scholarship on The Depending on one’sfaith in technological progress, the Internet Center at theIn December 2010, the Silicon Flatirons University of M K overview of the tension between and free speech online, privacy exemplified by the Europeanof a “right to oblivion.” concept Professor Neil M. Richards follows with a piece exploring the inadequacy of the Brandeis privacy torts applied to electronic communications. Professor danger of allowing privacyAmy Gajda then warns of the societal regulations to restrict news reporting about crime and the people involved in it. In light of the Internet’s promise of viral self-promotion, discuss theand Zach Shemtob changingof a public David Lat definition figure for purposes of defamation law. Professor James Grimmelmann pleased to publish in this issue the Press telecommunications policy, grid smart energy regulation, and consumer genetic testing. Professor Jeffrey Rosen begins explored issues as the shifting such privacy norms of professional journalism, anonymous commentary and the “unmasking”of abusive online personalities, and the evolving nature Thanks to the hard work and influential scholarship of Professor Paul Ohm, this conference on information privacy has been established as an annual tradition at Colorado Law, and we hope that it will contribute to this evolving discipline for years to come. and the rise of social media have either permanently of social media and the rise obliterated the legal posedof privacy or merely concept new challenges applying when existing law to unforeseencircumstances. Whether not a truly private or life is possible the age of Google, in it is clear and Twitter, Facebook, that traditional notions about intrusi shift from concerns Brandeis’s Samuel Warren and Louis online. of personal information takes on a quaint irony“right to be let alone” inan era where social media users eagerly broadcast intimate Wideacross the World Nevertheless, Web. the unprecedented ability of to aggregatecomputer communications personal information and preserve it indefinitely raises serious concerns about discrimination, digital record ofthe growing inability to escape the defamation, and law hasone’s past. Privacy the full extent of these yet to recognize to resolve them. challenges and develop new legal tools Colorado Law School brought together a distinguished group of privacy scholars, journalists, and industry representatives to debate these issues in the context of modern news reporting. Titled Scoops, Secrets, Landscape and Ethics in the New Media C Y 30555_cdt_9-2 Sheet No. 7 Side A 08/09/2011 09:04:54 08/09/2011 7 Side A Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 7 Side B 08/09/2011 09:04:54 M K C Y budget Journal’s editor Angela L. Professors Phil Weiser, Phil Weiser, Professors . Associate Editors Vlad Journal Colorado Journal of International milestone of its tenth volume. Journal work for regulation of smart gridwork for regulation when timing when transition. that Noschese, Jamie Stewart, and the Stewart, Jamie Noschese, rence compiled from a November from a November rence compiled of consumer genetic testing. xiv editorial and staff, whose hard board mentors such as such mentors and the credit for their thoughtful editorial work for their cooperation and collegiality. and helpful guidance throughout the year. We year. the throughout guidance helpful and Journal’s , as well as to the members and editorstheand of as to the members well , as Journal reaches the upcoming Journal Journal I am grateful to the I am grateful to the I thank the Colorado faculty Law and the Silicon Flatirons Center for work and friendship this yearwork and friendship hours have made countless of proofreading parts of law school. only bearable, but one of the best and production not Articles Editors Jennifer McDonald, Angela Shirin Chahal, Morrison, and Meredith deserve Simmons on each article and in this issue, and Production Editors Therese Kerfoot my sincere thanks forJake Adkins have their attention to detail and commitment to seeing the publication process through to the end. Managing Editor Alison Jensen excelled at planning the non-utility service providers, and fellownon-utility service providers, and theMorrison explores privacy dangers then explores how “first class objects” affect how personal information is information personal how affect class objects” how “first explores then inrepresented Professors databases. computer E. James Miller and James 2009 switch America’s Prieger examine television and the to digital decisionsstrategic broadcasters made D.C. in Washington, 2010 conference S. student Andreas Colorado Law proposes a new frame V. Wokutch then and social events, Executive Editor ensured Catherine Holtgrewe that academic credit for theirstaff members received well-deserved work, and Resource Editor Christian Alexander kept cite checksby on schedule diligently locating obscure source materials. Student Note Editors Kimberly West, Desta Asfaw, Kazuyo Morita, Rebecca Siska-Salkin, workedstudentinspiringan and Angela Wade each closely with authors, impressive range of scholarship that we are pleased to recommend for publication in of the the next volume Silicon FlatironsFellows a A. Sieh offer de Vries and Kaleb J. Pierre collection on wireless of essays interfe Dale Hatfield, Brad Bernthal, PrestonitAndy Hartman, and Padden, and Anna to work with a pleasure has been their support of the trusted to have many are fortunate manager journal to grateful I also am staff. Flatirons Silicon of the rest knowledge and personal of institutional her wealth Utchenik for Martha dedicationthe to University of Colorado Law Review Etinger, Tawnya Ferbiak, and Christine Rinke also proved invaluable in on helping keep the production process track. I appreciate the efforts of the entire staff to bring issue to press, but Symposium this Editor Madelaine Maior and Associate Symposium Editor Janna Fischer also deserve special commendation for their hard work. I am proud of what am we all accomplished this year and confident that the best is yet to come as the Environmental Law and Policy 30555_cdt_9-2 Sheet No. 7 Side B 08/09/2011 09:04:54 08/09/2011 7 Side B Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 8 Side A 08/09/2011 09:04:54
have opened opened have Eric P. Schmidt sors Paul Ohmsors Editor-in-Chief Journal issue to Profes issue to more questions, comments, xv Journal on Telecommunications and High Journal on Telecommunications is truly something and it has been an honor to be special, focus into the information privacy field and particularly field and information privacy focus into the Finally, I am pleased this to dedicate M K and Harry Surden, who as faculty advisors to the to advisors as faculty who Harry Surden, and e-mailinboxes offices, and their minds, pleasand frantic for assistance than I can count. wise counsel and Their withgenerosity made editingand expertise has their own time this journal a valuable experience learning both an academic on and a level.personal Ohm’s ambition admire Professor I the in expanding Journal’s this yearappreciate his efforts to fruition. With bright to bring that goal and capable members and editors, forward-thinking and some advisors, scholarshipof the most thought-provoking in the technology and telecommunications the fields, a part of it. Technology Law
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It is a great pleasure be to * OSEN at is bringing home to people the and MySpace picture about us is R these challenging So I am issues. author of The Supreme Court: The Personalities author of The Supreme Court: The Personalities 345 EFFREY J conversation. Y B shall Scholar; and Yale Law School. and Yale Scholar; shall THAT NEVER FORGETS NEVER FORGETS THAT notes 36 & 43-46 and accompanying text. & 43-46 and accompanying notes 36 6/20/2011 ELETE D . See infra . See Let’s beginof the problem with a reluctant icon of digital Keynote address sounds a little grand, but I’m at leastKeynote address sounds supposed to Thank you and good morning. so much 1 OT N O M K FREE SPEECH, PRIVACY, AND THE WEB AND THE PRIVACY, SPEECH, FREE * Jeffrey Rosen is a professor of law at The George Washington University and the legal The New Republic. He the editor of affairs and Rivalries that Defined America, The Most Democratic Branch, Crowd, and The Naked America, The Most Democratic and Rivalries that Defined cum laude; Oxford College, summa is a graduate of Harvard Rosen Gaze. The Unwanted a Mar University, where he was D if forced to choose between my privacy instinctsfreeforced speech and my if to choose betweenprivacy my instincts, I have no hesitation in this case in choosing free speech over privacy. So if there are to be remedies for the problemdigital of forgetting, that the most promising my sense is ones involve technology and norms and not law. forgetting, because it’s hard to talk about a privacy problem without putting a face to it. The privacy icon th set the stage for our discussions. And, this: new what I want to say is media technologies are presenting wrenching tensions between free world citizensspeech and privacy. Around the are experiencing the thedifficulty of living in a world where never forgets, Web where every blog and tweet and Facebook update This experiencerecorded forever in the digital cloud. is leading to tangible harms, dignitary harms, and as people are losing jobs “but”—law is not always a goodpromotions. But—and this is a big there are proposals in Europe andremedy for these harms. Although around the world to create new legal rights of oblivion that would allow us to escape our past, these threats rights pose grave to free speech. here. As Paul Ohm said, my interest in the fascinating subject of how to reconcile free speech and privacy, in an age when the Web never forgets, began with a conversationhad about a year ago. Paul’s work— that we and the center he’s established here—have been invaluable in exploring the tensions between free speech and privacy on the Internet, and I can’t think of a better place to talk about to our much looking forward C Y 30555_cdt_9-2 Sheet No. 10 Side A 08/09/2011 09:04:54 A 08/09/2011 10 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 10 Side B 08/09/2011 09:04:54 M K
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8 , E N.Y. . [Vol. 9 [Vol.. A federal judge rejected 5 at *2. *2. at Google and Yahoo should not Id. This is an extremely French 10 teachers college, and days college, teachers before 9 The school concluded The school that she Stacy Snyder. Stacy the young She is ht against MySpace, a private 2 r could she attempt to claim that Claiming we have a free speech right Claiming we have a free speech right He said, a public employee first, that she was 6 J. L ON TECH. HIGH & TELECOMM. As a result, her teachers As a result, her college denied her a Reform – Frequently Asked Questions Asked Reform – Frequently 3
4 The Web Means the End of Forgetting, of Forgetting, End the The Web Means 6/20/2011 at *8-9. Instead of receiving a Bachelor of Science with a teaching certificate, certificate, a teaching with of Science receiving a Bachelor of Instead at *8-9. . at *15-16. . at *15-16. . . at *16. . . at *6-8. ELETE D . Id . Id . Id . Id . Id . Id. . Data Protection She sued and invoked theShe sued and invoked First Amendment, claiming she had a If Stacey Snyder were in Europe, she might claimher dignitary that The unfortunate case of Stacey Snyder sums up the problem of what sums The unfortunate case of Stacey Snyder 5 6 7 3 4 9 OT 10 N O 8. Jeffrey Rosen, Jeffrey 8. Snyder graduated with a Bachelor of Arts in English. in English. of Arts Bachelor with a Snyder graduated teaching certificate. and, second, that her speech did not relate to a matterand, second, that concern. of public http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/542&format=HTML& 2011). May 13, (last visited aged=0&language=EN&guiLanguage=en was behaving an unprofessional in underage and promoting way drinking. Therefore, her to complete her student allow they did not teaching practicum. Because Snyder lost her lawsuit, she never graduated from teachersBecause never graduated Snyder lost her lawsuit, she now working in humancollege, and she is resources. 2. 3, 2008). (E.D. Pa., Dec. 97943 U.S. Dist. LEXIS 2008 Snyder v. Millersville Univ., woman who was about to graduate from from to graduate about who was woman her employer,her graduation discovered a public high school, that she teacher and her supervising posting criticizing on MySpace a had posted plasticpirate’s hat and a of herself with a a picture had cup and she put “drunkenthe caption under pirate” it. dangers never Web that of a is forgets D 346
her claim on two grounds. claimher on two 2010, at MM30. 2010, at MM30. be allowed to index the picture even be allowed to index the picture even they should if they want to, and notion. In America we want to be remembered; the French want to be forgotten. It’s straight out of Sartre. FrenchAnd the data protection President, Alex Türk, has proposed that you should be able to remove embarrassingyourself. information about free speech right MySpace picture. to post the doesn’t work under American law. No she has a constitutional privacy rig corporation. rights had been assaulted, and she might demand that Google and Yahoo remove all references to the picture by invoking a new right proposed by the European Union and the French data protection President, namely a right to oblivion. to do when we’ve posted embarrassing information about ourselves and have trouble gettingit back down. 30555_cdt_9-2 Sheet No. 10 Side B 08/09/2011 09:04:54 B 08/09/2011 10 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 11 Side A 08/09/2011 09:04:54
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D . and I asked and I asked ARV 12 347 NFORMATICS AND I , 4 H ORGETS F N ON ’ ONFERENCE OF OF ONFERENCE C EVER EVER L N ’ OMM “To satisfy a prurient taste C 14 the instant camera and the NT n, but obviously this is not a I L ’ what once was whispered in the EB THAT uld decide this sort of thing.” ND The Right to Privacy AT W 32 N rity for speech. American That’s the See See nsion between free speech and privacy, AND THE AND , RIVACY P e of the audience right now.If forced to choose
, The item that upset Brandeis is conventionally 15 PEECH http://www.justice.gov.il/PrivacyGenerations (last visited Apr. (last 20, http://www.justice.gov.il/PrivacyGenerations S
, RS REE REE ’ He said they ensured that 13 OMM 6/20/2011 in Jerusalemat a recent privacy conference, C Alex Türk – PresidentCNIL, of 11 (CNIL), http://www.cnil.fr/la-cnil/qui-sommes-nous/equipes/la- . . at 196. . at 196. ELETE D . Id . Id Brandeis’s famous article on the right to privacy in 1890, of course, Brandeis’s famous article on the right This is an area where Europe and America very diverge, and much Europe and This is an area where Stacy Snyder may be the modern ico OT 14 15 RIVACY RIVACY (1890). (1890).
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commission/alex-turk (last visited Apr. 20, 2011). Apr. 20, 2011). (last visited commission/alex-turk Israel. in Jerusalem, 2010, held October 27, 12. was Commissioners Conference of Data Protection and Privacy Annual The 32nd closets was now shouted from the rooftops.closets was now shouted from the 2011). 2011). 13. D. Brandeis, Samuel D. Warren & Louis Liberties. 11. Informatics and president of France’s National Commission on Alex Türk is the L & 195 have to pay youhave if damages they index in the picture causeways that you this obviously Now harm. moral speech free tremendous raises protection the French data debate with I had a good implications. President D 2011]F Brandeis is both our greatest protecting prophet of privacy in an age of new technologies and of protecting free expanding speech in an age of democracy. he come down on the tension between How would two liberties he cared passionately about? was reactinga particular to technology, tabloid press. about the details of how the right to oblivion would to be implemented. would to be implemented. right to oblivion details of how the about the suggested, youWell, he tribunal need an international would of forgetfulnessadjudicate to on a case-by-case basis what pictures had to come Who would up and what came down. decide and what was worthy what was free speech? “Well, wo experts a puls I’m curious to take enforceablelegally a more details, would you endorse right now, without right to oblivion or do you the prefer free speechwould side? Who choose the right I’m not And who would prefer free speech? to oblivion? a strong majo surprised to see such new problem. It goes back to Brandeis. You’ll forgive me for proselytizing, about the relevance but I am writing of Louis Brandeis today, and when it comes to the te way. the details of sexual relations are spread broadcast in the columns of the the indolent, column upon columndaily papers[,]” he wrote. “To occupy is filled with idle gossip, which can only be intrusionprocured by upon the domestic circle.” said to have been a mild society item Boston in the tabloids about
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IGH H (1979) (1979)
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. A ELECOMM EV T in RIZ This can’t have This been ON . L. R 16 . [Vol. 9 [Vol.. , 21 A , 21 AL But Brandeis himself said But Brandeis , 9 J. a few Boston tabloids; now 17 to identify who is a public rn that, as David Lat will rn that, as David , 48 C As a result of these intrusions, As a result 18 uate way of protecting privacy in anuate way of protecting Privacy The sheer scope of the gossip is so The sheer scope of the gossip is so 23 70 (1956)). 70 (1956)). reported on a 26-year-old Manhattan note 16, at 70). 16, at 70). note IFE L S ’ note 13, at 214-18. at 214-18. 13, note supra The Limits of Tort Privacy AN
J. L ON TECH. HIGH & TELECOMM. M nsus about what sort of invasions are highly supra 20 https://www.facebook.com/press/info.php?statistics (last visited Apr. 16, 2011). Apr. 16, 2011). (last visited https://www.facebook.com/press/info.php?statistics
, The Invention of the Right to Privacy of the Right The Invention REE REE F
A note 8, at MM30. 8, at MM30. note
: ACEBOOK supra , F 6/20/2011 TheTimes New York Neil M. Richards, Neil M. Richards,
at 5 (citing William L. Prosser, at 5 (citing at 6 (citing MASON, 6 (citing MASON, at
But they proved in practice, But they for will Neil Richards reasons RANDEIS “You have movie star issues,” she said, “and you’re just a 22 19 ELETE B 21
, D L. 357 (2011). (2011). L. 357 . Id. . See . Id. . Statistics . Id.
Another reason the Brandeis tortsfailed is because depend they all . In Brandeis’s day you had to be a Bostonto be gossiped aristocrat The reasons that the Brandeis tortsThe reasons that because largely failed are, first, OT 17 20 18 23 22 N ASON ECH O woman who said that she is afraidwoman who said of on dates and being going out tagged in online photos because it would reveal only that she wears two outfits. Brandeis proposed the four Brandeis torts, which sounds like a yummywhich sounds like Brandeis torts, proposed the four Brandeis dessert.
the case, becausethe said, Urofsky, Melvin biographer, Brandeis’s as the years the time.few old at a was only daughter person.” they pose grave threats to free speech and requirethey pose grave threats decisions is about who who is not—a conce a public figure and everyoneand more difficult in an age when describe, is more has his or her 15 minutes and everyone is a micro with a few Twitter public figure followers. (citing Letter from Roscoe Pound to William Chilton (1916), (1916), Chilton William to Letter from Roscoe Pound (citing 21. Rosen, Rosen, 21. that Samuel Warren, his co-author, was Warren, his co-author, that Samuel intrusions about the concerned on social press. privacy by the tabloid
(1960)). (1960)). 19. Warren & Brandeis,
16. Dorothy Glancy, Dorothy 16. M T Brandeis’s partner’s daughter’s wedding daughter’s partner’s Brandeis’s breakfast. D 348 explore today, to have been an inadeq age of new technology. extreme it that the idea that law could constrain is more implausible than ever. on some social conse accordingoffensive to a reasonable person or outrageous to existing social figure and who is not is increasingly elusive. So, that is one reason the more difficult now that the scope ofBrandeis torts failed, and it’s all the people who are being increased. commented on has so dramatically Brandeis and Warren were concerned about about in the tabloids, and now all of us are experiencing the indignity of Tryingbeing tagged and commented on. Facebook has more than 500 million members who share more than 30 billion pieces of content a month. 30555_cdt_9-2 Sheet No. 11 Side B 08/09/2011 09:04:54 B 08/09/2011 11 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 12 Side A 08/09/2011 09:04:54
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he 25 12:57
CRIBNER , 8 S , 349 ORGETS F 750 (3d ed. 2010) (defining 750 (3d ed. 2010) (defining EVER EVER I am not concerned right I am not So the ideaoff-the- that N 24 26 Spitzer is Linked to Prostitution Ring to Prostitution is Linked Spitzer the public sphere that could be s show so dramatically, shouldn’t EB THAT more important than reticence, ip was less of a dignitary harm ICTIONARY W D “Easy of comprehension, appealing
me that Brandeis wrote his famous LawyerSays Two DukeLacrosse Players Indictedin in brains capable of in brains capable other things,” AND THE AND , MERICAN A note 13, at 196. at 196. 13, note RIVACY P
, supra XFORD PEECH O S Apr. 18, 2006, at A23. 2006, at Apr. 18,
The Rights of the Citizen: IV. To His Own Reputation Own IV. To His Citizen: Rights of the The , er people’s private lives”). REE REE EW IMES N T
6/20/2011 (Mar. 10, 2008), http://www.nytimes.com/2008/03/10/nyregion/10cnd- e.g., Danny Hakim & William K. Rashbaum, Hakim & William Danny , , N.Y. ELETE See IMES
D . See . T 27 There is yet another difference between day and ours that Brandeis’s There has alsoThere has a transformation been and idea of gossip itself in the By contrast, once something was written down in the press it . 58, 66 (1890). 66 (1890). . 58, OT
24 26 N AG O M K gossip as “casual or unconstrained conversation or reports about other people . . . a person about other conversation or reports who gossip as “casual or unconstrained likes talking about oth 25. Warren & Brandeis,
N.Y. Godkin, E.L. 27. M norms. And,norms. mores changed,as sexual gender as grew, juriesequality and citizens no longer could agree of intrusions what sort about highly were content on by the volume of problem that’soffensive—a only exacerbated the Web. D 2011]F in our society.of its status is conventionally Gossip defined idle as talk personalabout the or private affairs of others. record conversations, as these WikiLeak be attended to in the public sphere is not something that we are willing to accept. hard to enforce.makes the idea of the Brandeis torts And that’s the end of the distinction between oral and written gossip. E.L. Godkin wrote an article on gossip just around the ti article, and emphasized that oral goss because it didn’t have to be responded to; it didn’t assault your public face if you knewyour neighbors were gossiping about you behind your back. wrote. Today, we lack that confidence of about the importance maintaining the boundaries between higher and lower discourse. Now the personal is political; authenticity is and disclosureand norms are being transformed. Talk about private affairs, players, is inherently consideredfrom Eliot Spitzer to the Duke lacrosse a matter of public concern, and we do not want judges deciding in in. advance what people should be interested to that weak side of human nature whichto that weak side is never wholly down by cast the misfortunes our and frailties of can be surprisedneighbors, no one that it usurps place the of interest now about rumors, which may be false. I want to focus on truthful, which may be false. I want to focus now about rumors, but embarrassing, affairs private gossip about the personal of others. In a focus on private lamented the idea that Brandeis’s day, Brandeis matters could crowd out the attention in devoted to matters of public concern. spitzer.html?pagewanted=all; Duff Wilson, Duff spitzer.html?pagewanted=all; Case Rape C Y 30555_cdt_9-2 Sheet No. 12 Side A 08/09/2011 09:04:54 A 08/09/2011 12 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 12 Side B 08/09/2011 09:04:54 M K
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, N.Y. , you did. Now the , you did. e and an accomplice , you didn’t have to . [Vol. 9 [Vol.. is under stress. In other ealed-gore-sex-scandal-victim- r, sued Cutler as well as and the idea that there is a and the idea that 28 everyone thinks should be Times The young man was so upset (June 29, 2010, 11:00 PM EDT), EDT), PM 11:00 29, 2010, (June 30 The roommat in their shared dorm and live- their shared dorm and in 31 NationalEnquirer NQUIRER and the E The New York Times The New rity/new-evidence-rev only added increasing pressure that makes L ’ AT Enquirer , N J. L ON TECH. HIGH & TELECOMM. Private Moment Made Public, Then a Fatal Jump a Fatal Then Public, Made Private Moment at 21. at 21. Washington Gets Ready to Gossip as DC Sex Blog Goes to Court Blog as DC Sex to Gossip Ready Gets Washington Rutgers students are debating whether a five year , A few years ago a blogger, Jessica a Capitol Cutler, 32 33 itself is breaking sex stories of political significance, of political breaking sex stories itself is This is the tragic case of the young Rutgers student whose 6/20/2011 29 Dec. 28, 2006
, Dan Glaister, Dan Glaister, (Both were charged with two counts of “invasion of privacy”; the most serious of privacy”; the most serious of “invasion were charged with two counts (Both
. ELETE D . See . Id. . Al Gore Sex Scandal . . Id. . Id. . Id In the U.S., as a result of these pressures,In the U.S., as a result we’ve drawn think what I What about in written sexual surveillance form, by the blogosphere OT 33 32 28 30 31 34 N UARDIAN O respond to it, but if it was in to it, but if it was respond Enquirer National poodle-like indiscretions, such as Al Gore’s charge has a maximum penalty of five years in prison). years in a maximum penalty of five charge has Hill staffer for a Republican senator, chronicled sexual experiences her by initialswith six different men whom she identified and in some cases by name, including details of their performances and proclivities. tells-all. 29. Lisa W. Foderaro, http://www.nationalenquirer.com/celeb roommate turned on a Webcam roommate turned on a Webcam broadcasted his dorm room intimacies. that days later he committed suicide.
at A1. Sept. 30, 2010, G required a response. Facebookhas literally and distinction, that exploded be to has and written down is now be spoken to that used gossip that is to, a transformation responded challengingalso the distinction press. It usedthe low and high between to be, even during the Clinton era, thatif in the something was D 350 are being charged under New Jersey law, and everyone expects them to and everyone expects them law, are being charged under New Jersey get serious jail time. of them, Robert Steinbuch, a fellow staffe of them, Robert Steinbuch, a fellow
actionable. it hard to resurrect them. it hard to resurrect legalis a fairly sensible is that very little truthful line which but is actionable.embarrassing speech sexualsurveillance Only outrageousin its most pristine form—hidden of sexual activity—is actionable, cameras but little else is. The Rutgers suicide case is a good example here of the kind of privacy invasion that almost words, the Brandeis torts were on life support even the explosion before of the Internet. The ‘Net has sentence is too harsh, but few people are disputing that extreme sexual surveillance should be actionable. rathercameras? than by the Here“the the paradigm case is Washingtonienne.” distinction between the 30555_cdt_9-2 Sheet No. 12 Side B 08/09/2011 09:04:54 B 08/09/2011 12 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 13 Side A 08/09/2011 09:04:54
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: N R but clearly lawsuits are not a 38 ITTLE EB THAT L who indiscreetly took some racy W uit dismiss the lawsuit refused to gone to trial, Steinbuch gone to have might AT . RK Google, Yahoo Win Argentine Google, Yahoo Win Argentine Google and Yahoo Win Appeal in Argentine Case and Yahoo Win Google A AND THE AND , ASHINGTONIENNE r Defamation in Argentina, Argentina, in r Defamation W OF . RIVACY HE P NIV
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, , U Two years later, the publisheryears later, the Two with settled PEECH The leading case about the right to forgetting in The leading case about the right S 36 UTLER PrivacyStrikes Backto - How Stop Cyber-Bullies, 39 C Lance Whitney, REE REE Vinod Sreeharsha, Sreeharsha, Vinod (Aug. 20, 2010, 11:58 AM PDT), http://news.cnet.com/8301-13578_3- AM PDT), 11:58 2010, 20, (Aug. This shows how hard it is how hard it This shows invasions for privacy to recover 6/20/2011
ESSICA 37 .; J . EWS ELETE , http://www.law.ualr.edu/faculty/bios/steinbuch.asp (revised Aug. 17, 2010). , http://www.law.ualr.edu/faculty/bios/steinbuch.asp N D . Bio: Robert Steinbuch Robert . Bio: . See generally . See generally . See . Id . fo Liable Not Yahoo! Declared . Id , Aug. 20, 2010, at B4. What are alternatives? As I said, other countries are exploring AW OT 38 41 40 35 39 42 ET L N IMES O M K Argentina involves a pop star called VirginiaArgentina involves a pop star called da Cunha. 2006, a district judge refused to dismiss the lawsuit against Cutler, who who Cutler, against the lawsuit dismiss refused to judge a district 2006, went bankrupt, Eighth Circ and the against Hyperion.against judge agreed that there to having these pictures was a dignitary offense and Yahoo to pay 50,000 pesosout there, and the judge ordered Google each in damages simply because their search results had included pictures meaningful remedy for most people without very strong stomachs, if not for most people without very strong meaningful remedy that’s the American line:deep pockets. So by camera sexual surveillance or possibly in blogs is possibly actionable,very but little else is, and I respects free-speech good legal line to draw that think that’s a very values. different models that would create legally enforceablerights to forgetting, and the harbinger here is Argentina. Argentina has no fewer search engines to remove or block than 130 cases pending to force offensive content. 20014265-38.html. 20014265-38.html. 11, 2010, at 6. 11, 2010, Steinbuch. CN Rosen, (reversing Cir. 2008) Steinbuch v. Cutler, 518 F.3d 580 (8th to dismiss); Cutler’s motion 36. Apr. 14, 2006) (denying 2006 U.S. Dist. LEXIS 19025 (D.D.C. Steinbuch v. Cutler, Jeffrey Hyperion). against dismissal 37.
fact, she thought the better and decided of these pictures that, although she had posed for them voluntarily, they her affronted moral dignity. (Aug. 26, 2010, 9:43 PM), http://www.yhumanrightsblog.com/blog/2010/08/26/yahoo- (Aug. 26, 2010, declared-not-liable-for-defamation-in-argentina/. T
Hyperion, which published the inevitable the published which Hyperion, followed. book that tell-all D 2011]F
OF lead singercalled Bandana of a band pictures of herself and they voluntarily, were posted online. that are quite dramatic.that are quite case Had the Steinbuchlost. Was figure a public not? Was the blog or widely circulated? Was the speech a concern? All matter of public of that might trial,have come out at the of the dangers of litigation but because publishers settled feels vindicated. and Steinbuch He is now a law professor at the University of Arkansas, C Y 30555_cdt_9-2 Sheet No. 13 Side A 08/09/2011 09:04:54 A 08/09/2011 13 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 13 Side B 08/09/2011 09:04:54 M K
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pop stars UARDIAN the tort and (Aug. 24, 2010, 24, 2010, (Aug. , G EUTERS Yahoo said that the said Yahoo , R 43 . [Vol. 9 [Vol.. raising all sorts of legal —which may only have one—which 48 46 this, but I was struck to see this, but I was struck U.S. to expand There’s another EU to proposal Sites to Enhance Privacy as European porn and as European porn utand then the search results, 47 (Apr. 6, 2011), to be forgotten that would require a g in North America That might be feasible That might in a Google 44 ONITOR M up no search result.
J. L ON TECH. HIGH & TELECOMM. to disappearing data, note 41; Juzgado Nacional de Primera Instancia [1a Inst.], Inst.], de Primera Instancia [1a Nacional note 41; Juzgado
note 41. Yahoo Moves to Bin . EU to ForceSocial Network When it Comes to Facebook, EU Defends the “Right to Disappear” the “Right Defends EU Facebook, to Comes it When CI S supra supra But Yahoo is now using But Yahoo Bing 6/20/2011 45 Google Argentina, http://www.google.com.ar (last visited Apr. 17, 2011). 2011). (last visited Apr. 17, http://www.google.com.ar Argentina, Google ELETE D . See This strikes me as an Orwellian visionThis strikes me as of rewriting history on a My First Amendment kneeMy First Amendment at jerked There are other proposals in the OT 45 N HRISTIAN HRISTIAN O search engine to ignore tagged results. how seriously is debating Europe creating broad rights of oblivion. Not only Alex Türk, but Viviane Reding, minister the European for justice and civil rights, has proposed a right 46. Nancy Gohring, Gohring, Nancy 46. http://www.csmonitor.com/World/Europe/2011/0406/When-it-comes-to-Facebook-EU- defends-the-right-to-disappear. only way to comply with the injunctions with way to comply only all sitesbe to block would that a particularrefer to plaintiff. 8:43 AM EDT), AM 8:43 Phillips, http://www.reuters.com/article/2010/08/25/urnidgns852573c40069388088257789006eb- Leigh idUS129778380120100825. 47. selective basis. And you can imagine of cases where the pop star all sorts might have decided to run for office, embarrassedtend to do, became abo demanded that all references to herself because be blocked of her interest in escaping her past. platform—so to block references to this pop star on Bing means all star on Bing to this pop to block references platform—so references would turn to her
43. Sreeharsha, 43. of Da Cunha that were linked that were Cunha of Da to erotic content. D 352 situation where there is a country-specific website like Google website like a country-specific where there is situation Argentina. 29/7/2009, “Da Cunha Virginia c. Yahoo de Argentina SRL y otro s/ Daños y perjuicios”, No. No. s/ Daños y perjuicios”, y otro c. Yahoo de Argentina SRL Cunha Virginia 29/7/2009, “Da Sreeharsha, (Arg.). 75, Expte. No. 99.620/06) 44. questions. Would the user’s Facebook right be against to delete the Facebook account?information that he wrote on his If so, would the same right apply when a third-party Facebook user copied and forwarded a new definition of data ownership?the information? Would we need The details of implementing be complicated, this right would in addition to posing lots of free-speech problems. There may be a big conflict between Europe we, as privacy and free-speech and America. And where to draw the lines.scholars, will have to debate vigorously C 48. Jason Walsh, Walsh, GMT), http://www.guardian.co.uk/media/2011/mar/16/eu-social-network- 16, 2011, 17:38 Jason sites-privacy. 48. create a legal right contractual remedies for dignitary invasions. My colleague at George contractual remedies for dignitary Washington, confidence Daniel Solove, proposes expanding breach of 30555_cdt_9-2 Sheet No. 13 Side B 08/09/2011 09:04:54 B 08/09/2011 13 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 14 Side A 08/09/2011 09:04:54 PM PM
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ORGETTING IN IN ORGETTING MAIL F , G 353 174-76 (2007). (2007). 174-76 , N.Y. ORGETS The combination of The combination
We need more apps apps more need We ORLD F 51 IRTUE OF 53 W http://www.tigertext.com (last V before the Tiger Woods
, EVER EVER N HE HE your texts to disappear after T
: EB THAT German Facebook app, X-Pire, X-Pire, app, Facebook German ESSAGING eating a legal right to delete, but W VEREXPOSED M ELETE O That would keep the plaintiffs’ bar plaintiffs’ keep the would That oogle, of course, now has an appoogle, of course, that 49 , D AND THE AND , OBILE g how Mail Goggles requires usersg how Mail during late-night M (This was named 52 apps on the basis of it. But I think that soft RIVACY P
, RIVACY IN AN IN RIVACY P
ECURE ECURE CHÖNBERGER , problems before an email will send). before an email problems S
-S Facebook Wins Relatively Few FriendsJapan in PEECH : New in Labs:Stop Sending Mail You LaterRegret S (2009). (2009).
EXT People rarely use their real names, so if your real friend http://www.x-pire.de/index.php?id=6&L=2 (last visited Apr. 17, 2011). Apr. 17, 2011). (last visited http://www.x-pire.de/index.php?id=6&L=2 OLOVE REE REE AYER
15 , T S 54
M J. GE IRE A IGER 6/20/2011 T Jon Perlow, X-P ANIEL IKTOR ELETE Facebook could, if it chose, encourage Facebook could, the development of apps D (Oct. 6, 2008, 6:25 PM), http://gmailblog.blogspot.com/2008/10/new-in-labs-stop- 2008, 6:25 PM), (Oct. 6, . See . See . See IGITAL A small-scale model of this is TigerText, which is the which text messaging is TigerText, of this model A small-scale So the solution by Viktor Mayer-Schönberger like best is proposed I Facebook has been reluctant to encourage these apps at the moment these Facebook has been reluctant to encourage In addition to technological solutions, there are norms-based 50 D OT 51 53 52 N O LOG M K system that allows you to say that you want three months or three days. because of its model, which encourages business it asserting ownership over its data and targeting nudges from privacy regulators, not cr creating incentives to develop apps that would allow this, would be welcome. THE 49. D 49. B suits so you could sue your sue so you could suits friendsFacebook breaching for confidence if settings. privacy violate your they D 2011]F very busy, in my view.very busy, And the practical of suppressing difficulties that speechvolume of as the free-speechconcern me, as well which issues, are My instinctcomplicated. in all these of law is too heavy- cases is that handed an instrument and technological solutions are better. bookin his wonderful “Delete.” dates for That solution is expiration data. 50. V 50.
2011, at B1 (stating, “[i]n a survey of 2,130 Japanese mobile Web users . . . , 89 percent of a survey of 2,130 Japanese “[i]n 2011, at B1 (stating, sending-mail-you-later.html (describin weekend hours to solve math that would allow us, when we post that drunken picture from Cancun, to when we post that drunken picture that would allow us, specify whether the picture we want to stay up there forever or for three months or for threedays. And G asks you when you post e-mails at midnight on Saturday when you post e-mails at midnight on Saturday asks you when you may be tipsy, “are you really want you sure todo this?” persuasive technologies like that combined with a specification that the lastpicture should only for three on a Saturday days when it’s posted evening would go a long way toward solving the problem. along these lines, and more support for them from the Facebook platform. platform. the them from Facebook and more support for lines, along these text-messaging scandal.) And a new And a scandal.) text-messaging data. of disappearing option an create also would visited Apr. 17, 2011). visited Apr. 17, 2011). 54. Hiroko Tabuchi, Hiroko 54. solutions. The Japanese come up have with a great solution along these lines. In Japan, social networking accounts are almost always pseudonymous. C Y 30555_cdt_9-2 Sheet No. 14 Side A 08/09/2011 09:04:54 A 08/09/2011 14 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 14 Side B 08/09/2011 09:04:54 M K
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J., Aug. 14, J., Aug. 14,
. T S (Dec. 3, 2010), (Dec. 3, ALL , which includes , W go to the person that go to the person that LATIRONS It is a terrible sin to F 58 . [Vol. 9 [Vol.. lashon hara says, not be said of a “Let it ILICON , S veness. The Talmud, for example, veness. The Talmud, their real names on the Web.”). Web.”). their real names on the norms and help construct zones ofnorms and help construct zones as the equivalent of water coolergossip,equivalentwater as the of pecially to nasty—is
Google and the Search for the Future for the Search the Google and
J. L ON TECH. HIGH & TELECOMM. 55 Baba Mezi’a 58b. Baba Mezi’a 58b.
, The idea in the Talmud that you can atone for your 6/20/2011 57 Privacy and Press: the Privacy Scoops, Secrets,Ethics and Landscape, in New Media the . ALMUD ELETE D . Id . See What can these rituals of atonement and forgiveness teach us as The question of norms and gossip brings of norms and The question the most us to perhaps OT 58 59 N O repentant sinner ‘remember your former deeds.’” repentant sinner ‘remember mistakes allows of forgetfulness, but of the possibility not only in wisdom and to become better forgiveness, which allows us to grow people and atone for our sins. The Talmud call someone to account for bad deeds past if they have been in the atoned for. journalists about gossip? I think Paul and Wendy Seltzer’s paper is a model in this regard. As you’ll see, they concrete have a recommendation: that media outlets should not publish stories based non-public socialsolely on leads developed through networking sites. They describe Facebook chat privacy. Journalists can follow these sorts of norms. In the privacy. Journalists can follow these Every word that we speak, according to the Talmud, to the ascends divine cloud, and Google’s virtual cloud has made this metaphor literal. The Talmud that says the speech only way to atone for about others— even if it’s the truth and not es which in fact it is. People share gossip not intending for it on Facebook, to public.be fully And if journalists respected didn’t quote from that and it directly, they could set privacy you have spoken about and ask for forgiveness. Butyou have spoken about and ask for forgiveness. if the person you’ve gossiped God wipes the heavenly about forgives you for the gossip, then slate clean. Panel One: The Shifting Privacy Norms of Journalism of Norms Privacy Shifting One: The Panel
55. Jr., Holman W. Jenkins, respondents said they were reluctant to disclose said respondents is someone who is not a fake friend, you share your pseudonym. share friend, you a fake is not who is someone That but employers account, whole to the have access friends your real way, from your walk away and you can always never do, and strangers pseudonymity That kind of pseudonym. Google practical than is more Schmidt’s solution:CEO Eric should people their just change on names graduation. high school D 354 56. Leviticus 19:16. 19:16. Leviticus A9. 2010, at T 56. 57. http://lawweb.colorado.edu/events/mediaDetails.jsp?id=3164. http://lawweb.colorado.edu/events/mediaDetails.jsp?id=3164. practical solution to the problem of digital forgetting,practical solution which is to create and forgi new norms of atonement takes gossip very seriously,takes gossip very and it prohibits or tale bearing,not only false gossip bearing or but even truthful tale unlessspeech about others, the gossip has a serious public purpose. 30555_cdt_9-2 Sheet No. 14 Side B 08/09/2011 09:04:54 B 08/09/2011 14 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 15 Side A 08/09/2011 09:04:54
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61 ORGETS chat rooms and other F EVER EVER N nd in the shires of Jeffersonian EB THAT an interview scholar a Texas with en spoken and written gossip or W AND THE AND , and private issues in And here’s what Brandeis said: 63 RIVACY P
, PEECH S note 8, at MM30. 8, at MM30. note REE REE supra But quoting that But quoting own Facebook scholar’s would seem chat 6/20/2011 60 is essay the greatest and most inspiring on free speech ever piece, as it piece, I quoted happens, . ELETE D . Id As for piercing anonymity, I’m suspicious of it on free-speech When I wonder about how Brandeis would have resolvedWhen I wonder about how Brandeis conflicts
Where does this leave us?Where does this raucous new universe where We have a OT 63 N O M K like a very different kettle of fish. clearly and speech is by the anonymous unless the harm caused grounds indisputably law.illegal under current Anonymity to is necessary encourage the expression unpopular of opinions, especially in this age of conformity is so quicklydigital mobs where It’s and so brutally enforced. also a norm to comment anonymously, as the comments section on any journalist to be dissected can be harrowing as a news article will show. It free-speech it’s very much a part of a vigorous anonymously, but debate, and as the Supreme Court recognized in the NAACP case where it refused to require to turn the NAACP the over its membership lists, piercing of anonymity effects. can have huge chilling virtual spaces, this is a fulfillment of the highest free-speech ideal which Brandeis located in Periclean Athens a democracy. Small-scale communities that allow vigorous Web debates were his ideal. between privacy and free speech, I imaginehave come down on he would the side of free expression. He was the inventor of the idea that sunlight concurringis the best disinfectant, and his opinion in California written in the 20th century. And when I wonder what Brandeis would have made of the blogosphere, I imagine he would have been nervously optimistic about its potential, even as he recognized its dangers. by the He would have been appalled polarization of speech on the Internet, by the of explosion trivial gossip. But ultimately he was an optimist. I imaginehave recognized he would that to the degree the Web is expanding the opportunities for ordinary citizens to debate both public 60. Rosen, Rosen, 60. 61. 458 (1958). 449, 357 U.S. NAACP v. Patterson, 62. concurring). J., (Brandeis, 377 (1927) 357, 274 U.S. Whitney v. California, Magazine D 2011]F Facebook on a public took place that privacy blog, seemed and that to me fair game. there is less and less distinction betwe between public and private speech. Anonymity reigns, and there are remedies.harsh attacks without obvious legal But as Louis Brandeis recognized betterthan anyone, democracy is not for the faint-hearted. C Y 30555_cdt_9-2 Sheet No. 15 Side A 08/09/2011 09:04:54 A 08/09/2011 15 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 15 Side B 08/09/2011 09:04:54 M K C Y PM PM
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64 . [Vol. 9 [Vol.. can justify repression. Such can I look forward to to be reconciled with freedom. Such, to be reconciled J. L ON TECH. HIGH & TELECOMM. 6/20/2011 . ELETE D . Id in my opinion, is the command of the Constitution. of the is the command in my opinion, too, and That’s my opinion, Those who won our independence by revolution were not cowards. were not revolution by our independence who won Those at the order not exalt did change. They fear political did not They in confidence men, with self-reliant To courageous, cost of liberty. processes through the reasoning applied and fearless free of the power be can speech flowing from danger no government, of popular the evil of incidence the unless clear and present, deemed there is befall before that it may is so imminent apprehended through expose there be time to If full discussion. for opportunity by the and fallacies, to avert the evil discussion the falsehood not speech, more is remedy to be applied the processes of education, an emergency enforced silence. Only is authority must be the rule if
OT 64 N O
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about these fascinating issues. Thank you so much. 30555_cdt_9-2 Sheet No. 15 Side B 08/09/2011 09:04:54 B 08/09/2011 15 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 16 Side A 08/09/2011 09:04:54 PM PM
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...... 365 ...... 361 RITIQUE ...... 382 C RIVACY P * RIVACY P ORT T MENDMENT A ...... 374 ...... ICHARDS R
357 developed by Warren, Brandeis, and IRST IRST F M. NVASION OF I HEORY OF T EIL ISCLOSURE N D rg. Thanks also to participants in workshops at Notre Dame Law at Notre Dame Law in workshops to participants Thanks also rg. ETHINKING ...... 358 R
: RIGINS AND IMITS OF O L 8/8/2011 ISCLOSURE AND THE HE HE THE LIMITS OF TORT PRIVACY TORT PRIVACY LIMITS OF THE ELETE Professor of Law, Washington University School of Law. An early draft of this essay of Law. An early draft of this School University Washington Professor of Law, * D T OT
D N
T ONCLUSION
O NTRODUCTION M K II. I. The conception of tort privacy Prosser sitsof American at the heart understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, protects against emotional tort privacy injury and was directed by design against disclosures of true, embarrassing facts by the media. In thisargue essay, I that as conceivedSamuel Warren by and tort privacy interpreted by William Prosser, Louis Brandeis and is a poor vehicle for grappling in the problems of privacy and reputation with privacy,digital age. Tort especially the disclosureits tort, has from conflict with Firstinception been in Amendment values. And when First conflict, FirstAmendment values and tort privacy values Amendment should prevail virtually all of the time. The disclosure will retain tort limited utility in the electronic environment, but privacy inof the age information and social media requires new strategies and new legal tools. Some of these strategies might include as presently tort privacy understood, but others require new approaches. These approaches can take either a broader look at tort privacy, including new new torts and harm, or they can include newtheories of injury beyond emotional conceptions of privacy altogether, such as confidentiality law. I was presentedwas the Silicon Flatirons at ConferenceandPress theUniversity on Privacy the of at in ideas about the and conversations For helpful comments on December 4, 2010. Colorado this paper, thanks to Danielle Citron, Rick Garnett, Mark McKenna,Paul Paul Ohm, Barron, Lat, Helen David Sandra Schwartz, Dan Solove, and my Silicon Flatirons co-panelists Zansbe Norton, and Steven for Special thanksto Eric Schmidt and to Jim Stanley Berkeley Law School. School and assistance. research outstanding D III.
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N.Y. N.Y. Sept. Grief, , Oct. , Oct.
IMES , 2:38 Privacy T
available available IMES IMES T
T
Tyler Clementi Tyler Clementi , N.Y. ing of a sexual ing , N.Y. national debate Tyler Clementi Tyler Clementi , N.Y. in these actions Oct. 3, 2010,
, Jan. 21, 2011, at A19; , Jan. 21, 2011, at A19; , ntly as a result of the IMES attempted to shut off Bullying, Suicide, Punishment Suicide, Bullying, . [Vol. 9 [Vol.. factor in Ravi and Wei’s and factor in Ravi cide Tell Rutgers University They University Rutgers Tell cide ONITOR M
N.Y. T N.Y. basis of their sexuality and . Wired, Educated and Shrewd, Young CI jumped to his death from the the from to his death jumped N.J. Gay Video Suicide Case May Result Case May Suicide Gay Video N.J. S ission of the record ission of the helped prompt a helped prompt a Oct. 1, 2010, at A23; Jeffrey Rosen, Jeffrey Rosen, A23; at Oct. 1, 2010, vasions of privacy will be brought by Online Musings Point to Student’s State of Mind to State Point of Student’s Mind Musings Online
, llowers to view streaming video of the Gets Better Project” in support of gay support Project” in Gets Better Ravi boasted about the incident on incident the about Ravi boasted 1 HRISTIAN HRISTIAN With Tyler Clementi’s Death, Let’s Try Friending Friending Try Let’s Death, Clementi’s With Tyler New Service Lets Voices from Egypt Be Heard, from Egypt Be Heard, Voices Service Lets New Although it is not known whether known not is it Although , C a video of his roommate a video of 4 was a contributing was a contributing ord another of Clementi’s sexual encounters ISPATCH
Across Egypt, Protests Direct Fury at Leader Fury Direct Egypt, Protests Across 7 Ravi was apparently assisted 2 -D On September 22, appare On September Date with a Revolution, with Date 3 Oct. 1, 2010, at A17; Sean Gardiner & Alison Fox, Fox, & Alison A17; Sean Gardiner at Oct. 1, 2010, J., Oct. 2, 2010, at A19; Brad Knickerbocker, Brad Knickerbocker, A19; Oct. 2, 2010, at J.,
, J. L ON TECH. HIGH & TELECOMM. . OST , Nov. 11, 2010, at 5. at 5. 11, 2010, , Nov. T P S Parents of Student Who Committed Sui Who Committed Student Parents of IMES Oct. 3, 2010, at A19; John Schwartz, Private Moment Made Public, Thena Fatal Jump
, Dec. 23, 2010, at A30. at A30. Dec. 23, 2010, T OUIS ALL
, Legal Debate Swirls Over Charges in a Student’s Suicide in a Student’s Charges Over Swirls Legal Debate L
EPUBLIC . OST R , W T P IMES
, Lisa Fodararo & Winnie Hu, , . , N.Y. , S 8/8/2011 T EW
, Oct. 2, 2010, at WK1. The “It Gets Better Project” videos are hosted at videos are hosted at Gets Better Project” WK1. The “It at Oct. 2, 2010, , In response, the Mubarak government Mansoura Ez-Eldin, 8 ASH , N . . . ELETE Ravi and Wei have been charged under New Jersey law with , N.Y. 5 D IMES , W . See . Id . Id . Id . See, e.g. . See, , Feb. 2, 2011, at A14; David D. Kirkpatrick, 2011, at A14; 2, Feb. , On January 25, 2011, Egyptian to Presidentdissidents opposed On September 19,On September 2010, Rutgers College Ravi used freshman Darun 8 2 3 T 4 5 It is likely that civil actions for in OT
6 http://www.csmonitor.com/USA/Society/2010/1003/Tyler-Clementi-suicide-Reaction-is- N IMES O NTRODUCTION Hosni Mubarrak began a series of protests Taksim in square, using social media platforms like Twitter and Facebook to encourage attendance at the world informedtheir gatherings and keep readers around about their situation. George Washington Bridge. Washington George torment caused by these events, Clementi Clementi events, caused by these torment 2, 2010, at A15; Geoff Mulvihill & Samantha Henry, Geoff Mulvihill & Samantha Henry, A15; 2, 2010, at Charges in Bias 7. Nate Schweber, Schweber, Nate 7. May Sue Suicide:Reaction Is Swift and Widespread Karim Fahim & Mona El-Naggar, & Karim Fahim Clementi’s family and estate. family Clementi’s about harassment of young people the on successful “It prompted the highly youth. Clementi’s sexual orientation sexual orientation Clementi’s him, the incident decisions to target by Molly Wei, a hallmate. 1. Lisa Fodararo, Lisa 1. I D 358 at Parker, Kathleen swift-and-widespread; Decency Outrage at at Rutgers Outrage
Strikes Back Strikes criminal invasion of privacy and transm and of privacy invasion criminal act. N.Y. 30, 2010, at A1. at A1. 30, 2010, Jan. 26, 2011, at A1; Christine Hauser, Hauser, A1; Christine Jan. 26, 2011, at
T 6. Winnie Hu, Winnie www.itgetsbetter.org. 6.
sequel as an Internet event. an Internet sequel as Twitter and attemptedto rec two days later, invitinghis Twitter fo a Suicide Before a webcam to covertly record to covertly record a webcam student. another with sex having 30555_cdt_9-2 Sheet No. 16 Side B 08/09/2011 09:04:54 B 08/09/2011 16 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 17 Side A 08/09/2011 09:04:54
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N.Y. N.Y. , N.Y. , N.Y. , N.Y. 2:38
n to the Feb. 21, 2011, Feb. 21, 2011,
, n cases, reveals , Feb. 17, 2011, at 2011, 17, Feb. , ’s ‘Off’ Switch A Tunisian-Egyptian IMES Simultaneously, (UK), Sept. 14, 2010, 2010, Sept. 14, (UK),
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to post the Clementi NDEP , N.Y. , Jan. 27, 2011, at A1; Jennifer Jennifer A1; at 27, 2011, , Jan. , I June 16, 2009, at A11. A11. 2009, at 16, June , N.Y. 359
, IMES Such been have not efforts 9 the news is also an invasion of the tort conception of privacy IMES RIVACY erican diplomatic cables to P , Feb. 2011, at 92. at 92. , Feb. 2011, T
N.Y. T wer to publish informatio Yearning for Respect, Arabs Find a Voice, a Voice, Find Arabs Respect, for Yearning AIR ORT ORT Jan. 29, 2011, at A13. at A13. 29, 2011, Jan. rn and North Africa
F , T Egypt Halts Most Inter cial networks, blogs, and YouTube, cial networks, blogs, and , Nov. 29, 2010, , N.Y. Feb. 14, 2011, at A1; Brad Stone & Noam Cohen, Brad Stone & Noam at A1; 2011, Feb. 14,
, IMES Egypt’s Autocracy Found Internet T ANITY ANITY
IMITS OF L Wikigate: The Twisted Inside Story of How Julian Assange Inside Twisted The Wikigate: OLITICS , V IMES , Feb. 10, 2011, at A1; David D. Kirkpatrick & Michael D. A1; David at 10, 2011, , Feb. P T HE
, N.Y. 11 IMES Leaked USReveal Cables Sensitive Diplomacy ProtestsSpreadto Tunisia’sCapital, a Curfew and is Decreed , N.Y. N.Y. T Egyptians Were Unplugged, and and Uncowed Unplugged, Were Egyptians Burma’s Junta Can’t Escape from the Net the from Escape Can’t Junta Burma’s Protests Take Aim at Leader of Libya Leader at Aim Take Protests t’s Biggest Secrets t’s Biggest LEAR C 8/8/2011 case illustrates the power of these technologies case illustrates the to invade privacy In New Role, Egypt Youths Drive Revolt, Drive In New Role, Egypt Youths ELETE MovementBegan withOutrage and a Facebook PageGave That an It Outlet Jan. 13, 2011, at A4; David D. Kirkpatrick & David E. Sanger, A4; David 2011, at Jan. 13, D
, , Feb. 6, 2011, at A10; Anthony Shadid, Shadid, Anthony 6, 2011, at A10; , Feb. A10. at 30, 2011, , Jan. Richtel, A1; Matt 2011, at Feb. 16, , Each of these cases, from Clementi and “It WikiLeaks, to the Gets For better or worse, Americanlaw currently uses tools developed in OT N IMES IMES IMES IMES EAL O M K T Social Networks Spread Iranian Defiance Online Defiance Iranian Spread Networks Social at 24; David D. Kirkpatrick, at 24; David D. R 11. Matthew Lee, Matthew 11. http://www.realclearpolitics.com/news/ap/politics/2010/Nov/29/leaked_us_cables_reveal_sens itive_diplomacy.html; Sarah Ellison, Governmen Spilled the WikiLeaks founderWikiLeaks prompted Assange has Julian an international diplomatic crisis by disclosing Am international newspapers. international Slackman, A14; Pheobe Kennedy, Kennedy, A14; Pheobe Link That Shook Arab History Link That Shook Preston, Scale of Shutdown Surprises Experts Surprises Shutdown of Scale 9. Noam Cohen, Cohen, Noam 9. T Egyptians Guide Revolt, Egyptians Guide T almost all Internet access to the country. to the access all Internet almost D 2011]T Better Project” and the Middle Easte the power of the Internet in the modern age.era of ubiquitous In an so and mobile computers,cameras individuals have an unprecedented po this information isworld. Much of trivial and mundane. But as these the powerexamples suggest, to the world has tremendous to broadcast potential to be used for good and for evil, and to harm.to help The Clementi and harm, while the Egyptian example shows their power to unleash important political speech. Of course, cases as there are difficult middle were well—what would happen if a newspaper video on its website? What happens when privacy? As we navigate the contours of privacy and speech, law will inevitably play an important role. How should our law conceive of these privacy issues, and what tools should it to approach them? use T limited to Egypt. In Burma and Tunisia,anti- Libya, and Iran and Burma In to Egypt. limited to build technologies as Ravi used the same protestors have government momentum forsupport and their political movements. at B3; James Glanz & John Markoff, & James Glanz at B3; 10. Alan Cowell, Cowell, Alan 10. the nineteenth and mid-twentieth centuries to deal with these problems 120 years, discussions of privacy in of the twenty-first. For the past American law have been dominated by C Y 30555_cdt_9-2 Sheet No. 17 Side A 08/09/2011 09:04:54 A 08/09/2011 17 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 17 Side B 08/09/2011 09:04:54 M K
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G. 193, 193,
y, 98 y, . 2:38
EV Today, R (expanded (expanded
see also 13 L.
note 16. . (2005); Diane (2005); 176
16 Indeed, the 15 ARV 919 supra
. (1960); (1960); H
EV ISTORY Prosser’s Privacy Law , 4 R note 16, at 1207; Eugene
389 H
L.
. with many courts and Privacy in Tort Law – Were Law Tort Privacy in supra 383, HI . [Vol. 9 [Vol..
(1977); Melville Nimmer, (1977); . 326, 330, 333-39 (1966); Lior Lior (1966); 330, 333-39 . 326, not of legitimate concern to the not of legitimate . C . 203 (1954). (1954). . 203
[hereinafter Richards & Solove, [hereinafter
organized into four them Privacy’s OtherPath: Recovering the EV U. a communication while in electronic a communication while
R ROBS r assessed the cases that had the cases that had r assessed ROBS
(1977). (1977).
P Edelman, P
, 72 . L. ning the private life of another is subject ning the private life of another is subject (2007) . NTELLECTUAL NTELLECTUAL
I . Prosser’s Privacy Law: A Mixed Legac Mixed Law: A Privacy Prosser’s §652A(2) The Right to Privacy Right The N disclosure tort has raised serious disclosure tort has raised serious §652D . 1049 (2000); Zimmerman, A Free Press v. Privacy: Haunted by the Ghost of Ghost of by the Haunted Privacy: Press v. Free (1990);
ALIF
: Harry Kalven, Jr.,
128-31 EV ORTS ONTEMP
ONTEMP R T
C C ORTS 1128
L. T
123, & & . , 48 C , 48
disclosure tort is largely unconstitutional. (1990); MERICA OF
) OF OF entity the contents of A 1107, onable person,and (b) is ) AW
AW L.J. TAN .
L .
These four torts share several These four torts share elements, but the 1195 EV Privacy
as widespread scholarly commentary. 14 . J. L ON TECH. HIGH & TELECOMM. EO R der the First Amendment,
The Florida Star v. B.J.F.: The Beginning of the End for the Tort of of the End for the Tort of The Florida Star v. B.J.F.: The Beginning , 52 S , 19 L , 19 , 31 ECOND AW IN AW IN EV ECOND L. (1983). (1983). L (S
. R
(S IS L. , 96 G 291 1904-07 (2010) [hereinafter Richards & Solove, & Solove, Richards [hereinafter (2010) 1904-07
ORT . .
T ].
Neil M. Richards & Daniel J. Solove, & Daniel Neil M. Richards J. 12 A Social Networks Theory of Privacy of Theory Networks A Social EV EX , Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort Privacy Brandeis’s and Warren to A Farewell for a Heavyweight: Requiem R T
1887,
, 1990 W . 8/8/2011 L. HITE see also see EV 18 U.S.C. § 2511(1)(c) (2010) (providing criminal penalties when one when one penalties criminal (providing (2010) § 2511(1)(c) U.S.C. 18 , 68 W ESTATEMENT R
ESTATEMENT ESTATEMENT ELETE Freedom The Troubling Implications of a Right to Stop of Speech and Information Privacy: D L.
. See . Over fifty yearsOver fifty later, William Prosse But at the same time, the But at the same time, OT ORNELL 16 N C
ALIF DWARD DWARD O Rightsand of Privacy Publicity the law recognizes the same four privacythe law recognizes announced in torts that Prosser of likeness, false light, and private facts, appropriation 1960: disclosure of intrusion into seclusion. disclosure tort conception of privacydisclosure tort conception has been highly is one that influential in American law, informing not just tort law, but civil and criminal statutes as well ed. 2003); Neil M. Richards & Daniel J. Solove, Solove, Daniel J. M. Richards & Neil ed. 2003);
14. R 14. “intentionally discloses . . . to any other person the contents of any wire, oral, or electronic any wire, oral, or electronic contents of “intentionally discloses . . . to any other person the (“[A] (2010) § 2702(a)(1) U.S.C. 18 violation); an ECPA obtained through communication” service to the public shall not communication electronic providing an or entity person knowingly divulge to any person or Black Justice storage by that service.”); Peter B. Edelman, service.”); storage by that L. Zimmerman, E C 12. D. Brandeis, & Louis Samuel D. Warren advanced in 1890 by Samuel Warren Samuel 1890 by in advanced their In Brandeis. and Louis article,famous argued Brandeis Warren and to Privacy,” “The Right that tort law their personality” against “inviolate protect a person’s should by an increasingly the housetops,” from being “broadcast private affairs intrusive press. D 360 Public Disclosure 17. Jacqueline K. Rolfs, adopted the Warren and Brandeis theory,the Warren and adopted categories, and used his influencecategories, and used leading torts scholar of his day to as the pruning became recognizedensure that his scholarly law. by the Jacob Strahilevitz, most importantones are those exemplified by the disclosure tort— private factspublicity given to that causes emotional harm. Privacy’s Other Path Other Privacy’s William L. Prosser, 13. 205 (1890); 205 (1890); Law of Confidentiality of Law public.” R Warren and Brandeis Wrong? Volokh, People from Speaking About You (a) a kind that: of is publicized the matter privacy, if his of other for invasion to liability to the 15. concer publicity to a matter “One who gives offensive to a reas highly would be 68 scholars the concluding that constitutional issues un 30555_cdt_9-2 Sheet No. 17 Side B 08/09/2011 09:04:54 B 08/09/2011 17 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 18 Side A 08/09/2011 09:04:54 PM PM
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2:38 Barron, Barron,
note 18, note 18, Neil M.
(1979);
supra (1946); (2008);
68 1295, 1302 (2010) 1295, 1302
. Gajda,
891-907 conflict between
44-57 IFE EV
L R
S 35, 875, ’
. . L.
(2009); .
AN EV EV 97 that because of the way R R M
361 AND L. L.
IFE
. L RIVACY REE
T U. F S P
A
RIVACY
. , 63 V : P A Warren and Brandeis project are
: disclosure to central become have s ofthe disclosure III tort. Part ICH mately choose between free speech disclosure privacy that the law can ORT ORT ORT ORT T M UFFOLK UFFOLK
T S Warren was a Boston Brahmin, a
RANDEIS 18 to remedypaper are real. concludes The speech is not merely an academic debate. debate. academic an merely is not speech B RANDEIS Part II examines the Part II examines
, 13 B , 2008 IMITS OF
D. , L HE OUIS ASON L HEORY OF
, ]. ]. M free speech,concluding T Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 4 Privacy, to Right Brandeis, The Warren and ROFSKY Brandeis HOMAS HOMAS U
T I. When the Warrens became the subject of unwanted 8/8/2011 20 He married Mabel Bayard, the Thomasdaughter of Senator RIGINS AND ELVIN ELVIN 19 LPHEUS The PuzzleThe of Brandeis,Privacy, Speech and O ELETE D What if Samuel D. Warren Hadn’t Marrieda Senator’s Daughter?:Uncovering the Press Although the precise origins of the This essay suggests a way forward.I outlines Part the theory and The disclosure tort has become theThe disclosure tort has become successful most legacy of note 18, at 908-09. 908-09. note 18, at OT HE HE N T
O M K Warren and Brandeis’s “The Right to Privacy.” That article’s central That article’s to Privacy.” Warren and Brandeis’s “The Right should be readclaim is that the common law to recognize a tort protecting the emotions of individualsprivate from disclosures of pictures) information (whether by words of about their lives. The basic argument for disclosure privacy is thus the basic argument of the Warren and Brandeis article. unclear, the evidence suggests that the originalfor the article came idea from Warren and not Brandeis. 19. A 19. [hereinafter Richards, Richards, Richards, Gajda, to Privacy the Right to Led Coverage that at 36. at 36. disclosure privacy and speech and disclosurethe free both structured American law has tort, the conflict is irreconcilable: We must ulti alongor privacy protections the line by suggesting some ways other than protect against some of thesewhilst harms also minimizing conflictwith Amendment. First the I. demonstrates the limits of disclosure privacy in both traditional and social and traditional in both privacy limits of disclosure the demonstrates trumpAmendment should the First thatarguingmedia contexts, disclosure privacy in all but a narrow category of cases. But the harms the disclosure tort has tried but failed F. Bayard. Citation a Landmark (1890): Demystifying 18. James H. Barron, The conflict between privacy and and privacy between conflict The pressingpolicysocial questions in the weof digital age. How can balance rightstheprivacy and rights of and context of blogs, speech in of tweets, social networks? other D 2011]T Questions ofinformation and control privacy, paying particular tort origins of lawtort common attention to the of disclosure of private facts. Harvard-educated family paper lawyer and the heir to a successful business. 20. M supra 20. C Y 30555_cdt_9-2 Sheet No. 18 Side A 08/09/2011 09:04:54 A 08/09/2011 18 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 18 Side B 08/09/2011 09:04:54 M K
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The result was an The result 21 . [Vol. 9 [Vol.. newspapers as the primary note 12, at 129-31. at 129-31. note 12, to make prediction that good the just to individual but feelings, also The threat posed by newspapers supra , 27 Boston newspapers,Boston Warren enlisted
26 note 18. note 12, at 195. note 12, at 195. supra supra note 18, at 1302. note 18, at 1302. , J. L ON TECH. HIGH & TELECOMM. supra supra Privacy’s Other Path Other Privacy’s supra , , Brandeis and have no wish to duplicate those arguments no wish to duplicate and have here, 23 Brandeis Richards
8/8/2011 ; at 196. at 196.
The trade in gossip created by the press, the authors thus ELETE 25 D . Id. . Id. . Id. . See id See . Second, Warren and Brandeis targeted details of sexual relations and idle gossip, which can only be procured procured be can only idle gossip, which relations and details of sexual intensity and complexity circle. The upon by the domestic intrusion have rendered necessary upon advancing civilization, of life, attendant influence the refining world, and man, under some retreat from the sensitive to publicity, become more has so thatof culture, solitude modern but individual; essential to the more become have and privacy upon his privacy, invasions through enterprise and invention have, than could be and distress, far greater to mental pain subjected him bodily injury. inflicted by mere I have written in greater detail Warren and Brandeis about the OT 26 27 25 23 N O
24. Warren & Brandeis, continued, included the publication of: argument protect a right common law should that the to privacy. It was as it was loose withas brilliant existing precedent. Anglo-American “Instantaneous and newspaper photographs enterprise,” they argued, sacred precincts of“have invaded the private and domestic life; and numerous mechanical devices threaten in the closet shall be proclaimed‘what is whispered the house- from tops.’” trading in gossip was thus a threat not to social morality itself. Viewed in this way, even harmless gossip would 21. Richards, Richards, 21. 22. & Solove, Richards Emotional harmthe very essence of the injury Warren and was thus Brandeis were seeking to remedy. attention the society from of pages for their proposedsource of this injury, and the core defendant tort. They was harmful,argued that although personal gossip widely-circulated gossip by journalists was vastly more dangerous, loweringand caused “the of social standards and of morality.” D 362 inBrandeis in published labors were of their fruits and the project, the 1890. in December Law Review the Harvard article elsewhere but for present First, aspects of the article are relevant. purposes three the article sought to protect individuals againstemotional harm—specifically and others private facts and photographs by journalists the publication of feelings. They arguedwhich produced hurt that this “evil of the invasion serious emotionalof privacy” caused and psychological damage. 30555_cdt_9-2 Sheet No. 18 Side B 08/09/2011 09:04:54 B 08/09/2011 18 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 19 Side A 08/09/2011 09:04:54
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But they 33 but would not 30 By crowding out more By crowding 363 lent influences on the development 28 ivacy its name and guiding
gave birthwas to a tort that 34 RIVACY
P should be the idea that “[s]ome ORT ORT Although few courts adopted or T 35 of case-by-case adjudication. IMITS OF L HE information of citizens, in the minds gossip Protecting privacy wasthus essential to protect not 29 8/8/2011 Thus, the tort would not prohibit the of publication at 216. at 216. at 214. at 216.
31 ELETE For a more detailed examination of Prosser’s ambiva D . Id. . Id. . Id. . Id. . Id. . Id. . Id. If Warren and Brandeis gave tort pr If Warren and Brandeis gave tort OT 34 30 31 32 33 29 28 N O M K private life, habits, acts, and relations of an individual,” inevitably going to comeinevitably going with the constitutionalvalues into conflict Amendment. protected by the First The third relevant dimension of “The Right to Privacy” was its “private”public/private distinction,nature of on the the reliance to both versus “public” the scope facts, and to of legitimate press inquiry as to those facts. The proposed tort would “concern[ing] the only protect facts Acknowledging that this principle was more alongAcknowledging that this principle the lines of a rough theysketch, the authors conceded that had not provided “a wholly distinctionof the accurate or exhaustive definition,”left the contours and to the common law method serious and important serious and sociallowered “thestandards and encouraged weakhuman side of nature” to flourish. just hurt feelings, but the level ofjust hurt feelings, public discourse itself. But by conceptualizing the tort in this way, “TheRight to Privacy” called for liability of the press for disclosing truthful private information—a tort against true publications hurt people’s feelings. By crafting that the tort in such a way, “TheRight to Privacy” 35.
have the effect of “inverting the effect have of things, importance the relative thus gossip personal When of a people. and aspirations thoughts the dwarfing dignityattains the of print, and crowds the space available matters of for real interestthe community, to wonder that what the ignorant and importance.” its relative mistake thoughtless D 2011]T “prohibit any publication of matter which is of public or general interest.” information with a “legitimate connection” withinformation with a “legitimate the fitness of a actions taken in the public sphere. candidate for public office or any principles, William Prosser gave itprinciples, William Prosser gave form and brought it into the mainstream of American tort law. insisted that the new tort’s lodestone things all men alike are entitled to keep from popular curiosity, whether are only privatein public life or not, while others because the persons concerned have not assumed a position which makes their doings publiclegitimate matters of investigation.” C Y 30555_cdt_9-2 Sheet No. 19 Side A 08/09/2011 09:04:54 A 08/09/2011 19 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 19 Side B 08/09/2011 09:04:54 M K
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note 13. not just one but tort supra , . [Vol. 9 [Vol.. note 13, at 1895-1903. 13, at 1895-1903. note note 12, at 1907-08. at 1907-08. note 12, Over four decades from the decades from Over four Today the four privacy torts 36 41 an interference with the right of supra supra , ,
casebooks and treatises, Prosser also and treatises, Prosser casebooks Prosser’s Privacy Law 40 The case involved the misappropriation and 42 s formulation representeds formulation case, the photograph was apparently taken note 13, at 389. note 13, at 389. note 13, at 388. note 13, at 388. , Minnesota became the 46thstate to recognizethe , Minnesota became J. L ON TECH. HIGH & TELECOMM. Privacy’s Other Path Other Privacy’s Prosser’s Privacy Law
39 supra supra Richards & Solove, , , Clementi Privacy Privacy 8/8/2011 see generally at 232. at 232.
ELETE Id. His principal contribution the cases was to argue that adopting D . Id. . Id. 37 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his or into his or solitude, plaintiff’s seclusion the 1. Intrusion upon private affairs. 2. Public disclosure of embarrassing2. Public disclosure plaintiff. private facts about the light in the public eye. which places the plaintiff in a false Publicity 3. plaintiff’s of the for the defendant’s advantage, 4. Appropriation, name or likeness. But Prosser’s influence on tort privacy was mixed. While he gave But Prosser’s influence on tort privacy OT 43 39 N O circulation in the community snapshots depicting the of holiday two female plaintiffs, Lake and Weber, “naked in the shower together.” the Warren and Brandeithe Warren “four distinct different interests of invasion of four kinds of the plaintiff, which are tied together by a common name, but otherwise have nothing in common except that each represents phrasethe plaintiff, in the coinedby Judge Cooley, ‘to be let alone.’” Unlike in the Prosser described his fourProsser described torts as follows: 1940s until the 1970s, Prosser worked to give the privacy torts order and the privacy torts worked to give the 1970s, Prosser 1940s until form. some or all of privacy torts. remain on the books much as Prosser left them at his death in 1972— appropriation. Nevertheless, most intrusion, disclosure, false light, and states recognize some or all of Prosser’s privacy torts. For example, in Lake v. Wal-Mart Stores 41. 40. & Solove, Richards 42. (Minn. 1998). 235 N.W.2d 231, Lake v. Wal-Mart Stores, Inc., 582 38. Prosser, 38. of tort privacy, privacy, of tort These four torts were recognized by the courts and today are the foundation of modern privacy. tort recognizedinprivacy the years after early Brandeis and Warren theirpublished article, about to write began time Prosser by the privacy such cases. several hundred there were D 364 37. & Solove, Richards 36. Prosser, 36. the torts a stature had previously they lacked, by including them as recognized causes of action in his limited tort privacy’s ability to evolve. 30555_cdt_9-2 Sheet No. 19 Side B 08/09/2011 09:04:54 B 08/09/2011 19 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 20 Side A 08/09/2011 09:04:54 PM PM
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46
illustrates how Lake RITIQUE C rren and Brandeis article 365 any redress of for the invasion RIVACY P rt should apply only to written ORT ORT T MENDMENT A Over the plaintiffs few months the next 44 IMITS OF L IRST F note 12, at 217. note 12, at 217. HE formulation, the Court held that formulation, the supra supra
45 Restatement 8/8/2011 at 233. at 233. at 235. ELETE D . Id. . Id. ISCLOSURE AND THE Although the disclosure tort has been adopted in most states and Today we join the majority of jurisdictions and recognize the tort of and recognize the tort jurisdictions majority of Today we join the part of our The right to privacy is an integral invasion of privacy. and a private exposed and active, persona, public has a humanity; one is choosing of our liberty heart preserved. The persona, guarded and we shall parts and which public become our lives shall which parts of nude their allege] that a photograph of hold close. Here [plaintiffs a very private part of is body One’s naked publicized. bodies has been only by choice. This is one’s person and generally known to others a without Therefore, of protection. interest worthy type of privacy Weber’s claims, we recognize Lake and of the merits of consideration and publication appropriation, upon seclusion, the torts of intrusion of private facts. OT 44 45 D N
O M K authors explained “[t]he injury resulting that from such oral communications would ordinarily be so trifling that the law might well, became aware that the nudebecame aware photographs developed had in fact been and were circulating along the community in hurtful with about speculation to have been invaded, their privacy sexualities. Feeling the plaintiffs’ the Invokingplaintiffs sued Wal-Mart. both the Wa and Prosser’s 46. Warren & Brandeis, Although liability in privacy cases appears to be rare, Although liability in privacy cases appears consensually by Weber’s consensually sister holiday gone on who had with them. The hadplaintiffs only at Wal-Mart, developed the film a note discover to collectedwhen they some photographs the prints that had not been due to theirdeveloped “nature.” D 2011]T disclosures of private fact, and not “grant influenced a variety of other kinds of privacy protections, it has always because of its inherent tension withremained under something of a cloud First Amendment. The conflictthe free speech protections of the between the disclosure tort and speech recognized was first by its that the public/privatecreators. Warren and Brandeis hoped distinction rightswould sufficiently balance privacy against free speech. They also acknowledged that their proposed to privacy by oral publication in the absence of special damage.” the four privacy torts remain alive, they also have an application and that beyond press defendants. II. C Y 30555_cdt_9-2 Sheet No. 20 Side A 08/09/2011 09:04:54 A 08/09/2011 20 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 20 Side B 08/09/2011 09:04:54 M K C Y PM PM
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of these each
49 This passage is passage This 47 . [Vol. 9 [Vol.. (1977). (1977).
ed that liability in privacy cases st Amendment. In contrast to tes, the truth defense, proof of bringing the disclosure tort in §652D ORTS ORTS shows that even Warren and Brandeis Brandeis and Warren that even shows T as mass media. OF ) w had established, and hisw had established, codification of the note 13, at 422. note 13, at 422. J. L ON TECH. HIGH & TELECOMM. ECOND Even worse, Prosser argued, was the likelihood that (S supra , 48 Privacy
8/8/2011 50 at 423. at 423.
ESTATEMENT ESTATEMENT ELETE D . Id. . Id. Prosser had even greaterProsser had misgivings and Brandeis than Warren One who gives publicity to a matter concerning the private life of of private life concerning the a matter publicity to who gives One privacy, if his invasion of the other for to liability to another is subject offensive to would be highly the matter publicized is of a kind that (a) to the legitimate concern and (b) is not of person, a reasonable public. Today, the concept of disclosure clearly privacy is most embodied in OT 49 47 N O elements creates tension with the First Amendment. For example, the publicity requirement is usually interpreted to require “public communication.” As the official comment to this section of the 50. R 50. interesting it because not only defamation law,which protected press through doctrinal defendants the retractionmechanisms like statu were aware that their proposed tort raised free speech tort raised that their proposed were aware also issues, but written concern was their primary it illustrates that because communication newspapers by constitutionalityabout the torts, especially of the privacy disclosure and upset the carefully- that tort privacy threatened to false light. He worried tort lacrafted balances that privacy cases into his treatises Restatement (of which he was the and the article, In an influential 1960 reflected these concerns. principal reporter) he lamented the trajectory that was particular into conflict with the Fir the disclosurespecial damages, and false light torts in particular lacked any such was worri limitations. Prosser could arise from the publication of non-defamatory truthful facts or even “laudatory fiction.” Section 652D of the Restatement of Torts. That section (Second) provides that
48. Prosser, 48.
Reorganizing this language slightly, we can think of the disclosure tort as having three basic elements: (1) publicity given to (2) private, non- offensive. Remarkably, newsworthy facts that are (3) highly in the of free interest speech, disregard it altogether.” D 366 under open-endedtests like “‘ordinary sensibilities’ or the ‘mores’ of the and proper, the courts, although community as to what is acceptable a power of censorship over what cautiously and reluctantly, have accepted the public may be permitted to read, extending very much beyond that law of defamation.” which they have always had under the 30555_cdt_9-2 Sheet No. 20 Side B 08/09/2011 09:04:54 B 08/09/2011 20 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 21 Side A 08/09/2011 09:04:54
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At AUL But P 55 2:38
54
& . 425, 438 438 . 425, EV Beaumont v. R The Remains of The
OLOVE L.
S . see also see
D J. , 55 M ANIEL ANIEL that is matter the made 367 Community and Self in the Common Self in the Community and , D injurious and less threatening (1977). (1977). , Jonathan B. Mintz, , Jonathan B. Mintz,
RIVACY P icity diverts attention away from see also ORT ORT §652D substantially certain one to become T disclosure of a husband’s marital 116 (3d ed. 2006) (collecting cases). cases). ed. 2006) (collecting (3d 116 see generally
, without some likelihood that the video ORTS ORTS Because the publicity requirement Because the publicity is AW T 52 L IMITS OF L OF ) HE ures most likely to raise First Amendment ploration of the Private Domain Private the ploration of RIVACY RIVACY Publicity can be oral, Publicity written, or electronic, but P . 957, 992 (1989); (1989); 992 957, . 51 ECOND EV (S The Social Foundations of Privacy:TheFoundations Social of R
L.
. Some cases have read publicityallowingread more narrowly, have cases Some Miller v. Motorola, 560 N.E.2d 900 (Il. App. 1990); App. 1990); N.E.2d 900 (Il. Miller v. Motorola, 560 AL 53 8/8/2011 NFORMATION NFORMATION I
, at cmt. a.
ESTATEMENT ESTATEMENT , 77 C 77 , ELETE R D . See, e.g., . See, . Id. . Id. . Id. . But because mass publicity is one of its key elements, the disclosure publicity is one of its key elements, But because mass OT 54 53 52 51 57 N O CHWARTZ M K Privacy’s Disclosure Tort: An Ex An Tort: Disclosure Privacy’s
other uses of words that may be both more the same time, the focus on mass publ to the First Amendment. Robert Post notes, for example,“[w]e that often care more about what those within our ‘group’ think of us than we who comprise the general strangers do about our reputation among the public. Yet the publicity requirement, as defined by the Restatement, would impose sanctions for the not for its disclosureinfidelity to the general public, but to his wife.” particularly harmful known in a workplace, for instance. facts made Recall once more the streaming which though of the Clementi sex video, announced on Twitter, was apparently only viewed by a relatively small number of people. Under the traditional definition of publicity in the a video to a small group of peopledisclosure tort, the circulation of would not by itself be actionable became “a communication that reaches, sure to reach, or is the public.” these cases remain a clear minority. tort targets those disclos concerns because they bear a close resemblance to a news broadcast. concerns because they bear a close S
of public knowledge.”of public Restatement publicity clear, makes “means by communicatingpublic, large,public at it to the to so many or persons matter must be regardedthat the as D 2011]T Brown, 257 N.W.2d 522 (Mich. 1977); 522 (Mich. Brown, 257 N.W.2d (1996). (1996). concern”). Amendment First private speech “is of less that (noting 758-59 U.S. 749, 472 Inc., Builders, Greenmoss Inc. v. Cf. Dun & Bradstreet, 55. 56. Robert C. Post, Law Tort Law crafted in this way, the disclosure tort targets mass communications suchcrafted incommunications tort this way, the disclosure mass targets theas newspapers—exactly publications likely kinds of to raise First Amendment concerns. contrast, publicity isBy not triggered by communicatinga single private facts “to a small group person or even to of persons.” “any publicationa magazine, even a newspaper or in circulation, of small distributedor in a handbill number to a large any broadcast of persons, or radio,over the or statement a large audience, in an address to made is publicity[.]” sufficient to give C Y 30555_cdt_9-2 Sheet No. 21 Side A 08/09/2011 09:04:54 A 08/09/2011 21 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 21 Side B 08/09/2011 09:04:54 M K
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Warren and Brandeis . [Vol. 9 [Vol.. 59 Brandeis that argued the 61 . e that he backed away from In a departure from the faith 62 ng “hot news” gathered by competitors in note 18, at 1308. note 18, at 1308. J. L ON TECH. HIGH & TELECOMM. supra , , Brandeis notes 28-32 and accompanying text. accompanying and notes 28-32 and there is evidence to believ 8/8/2011 60 at 1340-41. at 1340-41. at 263. at 263. ELETE D . See supra . See . Id. . Id. More difficult definitional problem is a substantive one: than the The second problem with the disclosure tort is that it requires tort is that it requires the disclosure problem with The second OT 58 60 62 N O Yet the distinction between private information and information that is protected in the interest of public debate can be a difficult one, because be in both categoriesinformation can at once (think Bill Clinton’s extramarital lie in the extremely affairs) or can fuzzy area between the two concepts, which are themselves poorly defined. what publications are of “legitimate The idea that courts should police are not raisesconcern to the public” and which a serious risk of censorship. Warren and Brandeis recognized that this was a potentially fuzzy distinction, but they had faith in to police the ability of courts the line in a fair, principled, and determinate way. were writing before the First World during a period in American War, jurisprudence when First Amendment protections protected. were thinly Brandeis himself later admitted that he had not “thought through” the issues of the First Amendment was forced until he to rule on a series of important prosecutions under federal and state espionage acts from 1919-1927,
The focus on publicity thus increases thus publicity focus on The the constitutional without risk, necessarily ofharmful kinds most on the liability focusing disclosures. D 368 dividejudges to private, into public and of press publications the world requiring public to protect the them and hold liable the private. The distinctionpublic/private play comes into the common- in two areas of law tort—the be that the information requirement “private,” and the disclosurelimitation that the of information is not of “legitimate concern elements these are today formally separate to the public.” Although in Brandeisand As Warren senseit to treat them together. makes tort, the themselves recognized, these elements are usually related—information is not fit for public consumptionwhich is truly private and vice versa. 59. Richards 59. 61. (1918). 248 U.S. 215 International News Service v. Associated Press v. Service International News his nineteenth century confidence in the ability of courts to police legitimate and illegitimate speech as a judge when he was confronted with the problems of the twentieth century. For example, Brandeis dissented recognition from the Court’s of a common law right preventing news services from the reprinti he placed in the common law’s ability to regulate the press in “The Right “free use of knowledge and of ideas” could“free use of knowledge and of ideas” be curtailed by the recognition of a quasi-property right in news reports. 30555_cdt_9-2 Sheet No. 21 Side B 08/09/2011 09:04:54 B 08/09/2011 21 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 22 Side A 08/09/2011 09:04:54
65 HE PM PM
, 22 22 , REE REE T F
2:38 , :
magazine Although Although ABBAN PEECH 63 S R
Time M. note 13. note 13. , the court first REE F supra supra AVID , D
HITE 369 64 judges deciding tort actions (1991); Time v. Hill RIVACY leave to courts, but should as a leave to courts, but P RANSFORMING RANSFORMING T what was a legitimate matter of ORT ORT
, T 66 RABER IMITS OF G L IBERTARIANISM , 1870-1920 (1997); W (1997); , 1870-1920 L
HE A. EARS IVIL IVIL Y C The Death of the Public Disclosure Tort: A Historical Perspective Tort: A Historical The Death of the Public Disclosure ARK M . 171, 173 (2010). (2010). . 171, 173 ORGOTTEN ORGOTTEN EGACY OF F UM 8/8/2011 L H
TS TS I
&
ELETE L.
D . See generally . Id. . Id. J. expansion of the definition of “the news” to encompass a wide variety of “the news” to encompass a wide variety definition expansion of the private facts, and including a reassessment of the of information, see the We social life. to modern media the news significance of about the right to know” emergence of the concept of “the public’s that the purpose of the media, and the ideas the news world through the complex workings of inform citizens about to news is not only For the news media public discourse. but to generate modern society constitutional legal and there must be robust function, to achieve this as must be as extensive content and news press, a free for protection the public’s interests and concerns. Subsequent disclosure casesSubsequent disclosure bore out Brandeis’s suspicion that while OT 65 64 63 N MBIGUOUS MBIGUOUS O ALE PEECH IN IN PEECH M K
Y 66. Samantha Barbas, Samantha 66. In a recent that Barbas argues quite convincingly article, Samantha in a cases, series of mid-century disclosure tort were in reality thinking through the basic elements of free speech law, including broadening the notion of public concern. Surveying the mid-century disclosure tort cases, Barbas shows how in the disclosure tort cases, judges recognized a social common law rules could prove useful for simple legal problems involving legal problems useful for simple law rules could prove common interests, “withonly private society, complexity of the increasing the public interest tends to becomeomnipresent.”
A S a similarly broad view of the First Amendment case law has taken mid-twentieth From the century to the present, the Supreme Court’s “legitimate public concern” In standard. addressed a claim that privacy the media liability against offended the First Amendment, holding that a false light claim against to Privacy,” Brandeis suggested that while the common law “possesses “possesses law common while the suggested Brandeis to Privacy,” that capacity satisfied has often and for growth new demands by for justice invoking analogies or by expanding a of a principle,”rule this approach inwas unwarranted the factual context business. of the news D 2011]T normative matter to be left individual citizens to decide for themselves. the line between is easy to understand public and private the abstract, in or predictability. hard to draw with any confidence in practice it is very (especially Brandeis century marched on, judges And as the twentieth and to believe freedom of speech to democracy himself) came to link that as what constitutesquestions as important a matter of public concern were not only to becoming too difficult C Y 30555_cdt_9-2 Sheet No. 22 Side A 08/09/2011 09:04:54 A 08/09/2011 22 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 22 Side B 08/09/2011 09:04:54 M K , C Y PM PM
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Snyder v. Phelps
69 71 . [Vol. 9 [Vol.. dment, also applied this These ideas are also traceable free speech is valuable because 70 nry, and the should state not from private by courts in privacy 310 U.S. 88 (1940)). 88 (1940)). 310 U.S. , the germinationmature free of his the First Amendment required broad Even thoughEven the case had been by brought
67 note 18, at 1323-34. note 18, at 1323-34. J. L ON TECH. HIGH & TELECOMM. and the First Amen protection to even offensiveunrefined and speech supra , note 66, at 214. 66, at 214. note supra , Brandeis represents a foundational and enduring commitment of the
8/8/2011 68 , disclosure tort cases applying the test in practice have required Barbas, at 385 (quoting Thornhill v. Alabama 385 (quoting at ELETE D . See . Id. The mature Brandeis seems to have the better argument with The guarantees for speech and press are not the preserve of political the preserve of speech and press are not The guarantees for essential as those are to upon public affairs, comment expression or or pick up any newspaper need only One healthy government. matter which the vast range of published comprehend magazine to and public private citizens view, both public exposes persons to is a degrees in varying to others the self of officials. Exposure risk of this The community. civilized in a life of concomitant a which places in a society life incident of essential is an exposure speech and of press. on freedom of Freedom of primary value must nation, in this fulfill its historic function would discussion, if it or appropriate is needed information which issues about all embrace of their with the exigencies to of society cope members to enable the period. OT 69 68 N O 71. Richards 71. 70. 1216 (2011). 131 S. Ct. 1207, Snyder v. Phelps,
back to Louis Brandeis, and represent speech jurisprudence which is directly at odds with many of the assumptions and arguments of “The Right to Privacy.” (1964)). 67. (citing New York Times v. Sullivan, 376 U.S. 254 (1967) 374 Time v. Hill, 385 U.S. attempt to proscribe the fit debate. subjects for public Time v. Hill modern First Amendment—the idea that it helps to preserve an informed citize required the stringentto satisfy the plaintiffs malice actual from standard v. Sullivan. York Times New D 370 respect to the direct separation of public tort cases. Mythe public-private line is indefensible claim here is not that or always unworkable, but rather to suggest that as Brandeis predicted in INS v. AP courts to engage that is, in the words of one scholar, in a process an a previously unknown family who had been the victim of a celebrated the victim of a who had been unknown family a previously the Courthostage ordeal, held that deference determination to the press’s of in the public interest. what was BrennanAs Justice it, put the Court’s most recent word on the intersection between tort liability on the intersection between recent word Court’s most the for emotional injury standard, giving strong on matters “of interest to society at large.” 30555_cdt_9-2 Sheet No. 22 Side B 08/09/2011 09:04:54 B 08/09/2011 22 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 23 Side A 08/09/2011 09:04:54
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note But 2:38 75
under an supra supra , Moreover, 72 Chaplinksi
77 175-76 (2008). 175-76 (2008). Privacy’s Other Path Other Privacy’s 371 of tort privacyrooted in Chaplinski v. New Hampshire RIVACY RIVACY P This move was of a trend part P 73 commitments to the freedom of ORT ORT T nouncing the Pope was protected by early twentieth century the to broaden statute to the one it upheld in IMITS OF Gooding v. Wilson, 405 U.S. 518, 528 (1972) (striking (striking (1972) 518, 528 U.S. v. Wilson, 405 Gooding L note 12, at 195. note 12, at 195. NDERSTANDING NDERSTANDING HE U
, , the Court held that the playing in a Catholic, the Court held that the playing see, e.g., e.g., see, supra supra In this respect both privacyemotional and the 74 OLOVE note 13, at 173; Richards & Solove, Solove, & Richards 173; note 13, at S
for overbreadth). for overbreadth). J. supra , 8/8/2011 ANIEL D HITE ELETE 315 U.S. 568 (1942); 568 315 U.S. D . See . The third problem with notions the The idea that valuable speech must beThe idea that valuable speech must protected notwithstanding OT 74 77 N O M K
distress torts shared many similarities, and Prosser was involved in the shaping of both categories of these torts into their modern forms. Although two years later the Court held in Although two years later the Court that the First Amendment did not protect “fighting words” on the theory that words that wound do not contribute the processes of free speech, to the category of fighting words has rarely been litigated and the Court has never the fighting words theory, upheld a subsequent conviction under even when presented with strikingly similar facts. 72. note 16, at 921. supra Strahilevitz, 73. Warren & Brandeis, “abstract, circular, and highly indeterminate question.” indeterminate highly and circular, “abstract, D 2011]T expression. expression. nondisclosure is the nature of the injury the that tort protects. Although of individuals spoke in terms of the dignity Warren and Brandeis whose private matters were made remedy the injury the tort sought to public, was psychological,in embarrassment rooted causing to what harm they called a person’s “inviolate personality.” because that indeterminacy that because in operates of an area First Amendment sensitivity, it raises additional constitutionalconcerns. Giving a court the declare informationpower to “illegitimate” standard is under a malleable to censor expression court the power to give that a jury) that it (or and is at odds withdislikes, modern 75. W 75. conception of tort harm beyond physical and property include injuries to psychological injury. in cases in the late nineteenth and any emotional harm it causes has continued to be a major feature of any emotional harm it causes has remedying the emotional harm caused by words also conflicts with Firstremedying the emotional harm caused Amendment norms. A central tenet ofmodern First Amendment law is feelings, withoutthe idea that words causing hurt more, cannot be subject of civilpunished by the state or made the liability. Thus, in Cantwell v. Connecticut neighborhood of a vitriolic record de the First Amendment even though the it “aroused animosity.” down an almost identical fighting words fighting identical down an almost 12, at 1908-09. 12, at 1908-09. 76. (1940). 311 310 U.S. 296, overbreadth theory); Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (noting that speech (noting that 337 U.S. 1, 4 (1949) Terminiello v. City of Chicago, overbreadth theory); unrest, creates a condition of induces it serve its high purpose when “may indeed best a down striking and stirs people to anger,” are, or even as they conditions with dissatisfaction fighting words statute C Y 30555_cdt_9-2 Sheet No. 23 Side A 08/09/2011 09:04:54 A 08/09/2011 23 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 23 Side B 08/09/2011 09:04:54 M K C Y PM PM
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80 81 , as noted, as above, —that the Firstthe —that formation); Okla. Publ’g 78 Firestone v. Time, ation of public concern, even concern, of public ation er for publishing the name of the name of er for publishing . [Vol. 9 [Vol.. and constitutes protected speech,constitutes protected That case made the strongest Time v. Hill 82 . n careful never the to declare was not a privacy case, dealing New York Times v. Sullivan York Times New privilege for speech over emotional wfully obtained the in Gertz v. Welch Sullivan g the media from publishing the name of a juvenile in a publishing the g the media from Sullivan publishing newsworthy inform newsworthy publishing state from punishing a newspap state from punishing J. L ON TECH. HIGH & TELECOMM. Hustler v. Falwell The NewCase: YorkTimes A NoteCentral “The on Meaning of the 1964 Sup. Ct. Rev. 191, 208. 191, 208. Ct. Rev. 1964 Sup. ” , Bartnicki v. Vopper, 532 U.S. 514, 526–28 (2001) (holding that a radio that a radio v. Vopper, 532 (2001) (holding U.S. 514, 526–28 , Bartnicki , 8/8/2011 Consequently, at least when it ELETE 79 376 U.S. 254, 270 (1964). (1964). 270 376 U.S. 254, e.g. See, D . The most important case involving the clash between free speech OT 79 N O Court noted that grantingCourt noted that damages for speechalleged to have caused emotional harm risks punishment merely for unpopular opinion. extended the actual malice requirement light invasionto false of privacy press. Andclaims against the in harm applies in the privacy area as well. privacy harm in the applies Supreme announced Court the “central called have what commentators First of the modern meaning” Amendment First Amendment 78. Harry Kalven, Jr., modern First Amendment law. In law. Amendment First modern D 372 Amendment is principallyAmendment a tool advancing democratic self-government through public is in the press that debate “uninhibited, robust, and wide- whichopen,” and sometimes caustic, and calls for “vehement, frequently unpleasantly attacks” sharp women and their on public men and in role society. and emotional harm is instead with the related cause of action defamation, of subsequent cases have made clear that the expression has been strongly privileged at the expense of even serious strongly privileged at the expense expression has been Althoughemotional harm. statement yet that tort liability for words causingstatement yet that tort liability for emotional harm is a direct threat to the free exchange of information and ideas. At least of the intentional infliction ofwhere public figures are the subject protects even “outrageous”emotional distress, First Amendment the disclosure tort unconstitutional in all of its potential applications. cases involving the disclosure claims under tort and similar legal theories have also been consistentlyFirst Amendment rejected in favor of deference, though the Court has bee station cannot be prohibited from prohibited station cannot be Fla. Star v. B.J.F., 491 by a third party); been illegally obtained had where such information a name of of the publication the prohibiting state statute that a (holding (1989) 526 U.S. 524, from a a newspaper that had obtained the name rape victim was unconstitutional as applied to U.S. 97 (1979) (holding “publicly released police report”); Smith v. Daily Mail Publ’g Co., 443 a prohibits the First Amendment a juvenile murder suspect because the press la (1974). 80. 349 323, U.S. v. Welch, 418 Gertz (1976); n.3 475 448, U.S. 424 Time, Firestone v. 81. Amendment the First (holding (1977) 308 Court, 430 U.S. Dist. County Corp. v. Okla. prevents a state court from prohibitin (1975) 469 U.S. 420 v. Cohn, Corp. Broad. a reporter attended); Cox proceeding that cannot be public records the press from by name of a rape victim obtained the (holding under the for liability or made the basis by statute prevented from published being tort). nondisclosure 82. (1988). 485 U.S. 46 30555_cdt_9-2 Sheet No. 23 Side B 08/09/2011 09:04:54 B 08/09/2011 23 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 24 Side A 08/09/2011 09:04:54 PM PM
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Moreover, the Moreover, the 83 the Supreme Court 373 RIVACY P problem, and damages based on on a matter of public concern sclosure tort a highly limited and ORT ORT
public/private are striking, problem T 84 through crude caricature. Part of the Part caricature. crude through Snyder v. Phelps, IMITS OF L HE
85 8/8/2011 at 55. at 55.
ELETE Id. D . Id. These three problems inherent in the design of the disclosure tort— These three problems inherent in the “Outrageousness” in the area of political and social discourse has an and social discourse the area of political “Outrageousness” in impose to allow a jury would it which about subjectiveness inherent basis of the jurors’liability on the tastes or views, or perhaps on the expression. An “outrageousness” dislike of a particular basis of their damages refusal to allow of our longstanding runs afoul standard thus have an adverse question may to be awarded because the speech in impact on the audience. emotional The practical problem of separating the protected from the OT 84 N O M K 322 (1988)). 85. Boos v. Barry, 485 U.S. 312, (quoting 1219 (2011) 131 S. Ct. 1207, Snyder v. Phelps,
83. When it to separating comes worthless emotional harassment from protected speech, the parallels to the attempts harm emotional to cause speech out worthless to separate difficult one—it is is a practical problem from valuable expression.emotional harm causing Considering the noted Chief Justice Rehnquist question, possible by layingthat “if it were public one from the other, to separate the standard down a principled discourse would probablysuffer little harm. But we or no doubt that there is are quite sure and we any such standard, that the pejorative description ‘outrageous’ one.” does not supply especially when applied to public figures or public matters. D 2011]T constitutionally suspect remedy. This is particularly true in the very cases the media as a target, the public/private emotional harm—have rendered the di indeterminacy created of the legal standard by the emotional binaryharm/valuable speech creates risks of censorship. As the Court put it, unprotected is hard enough for courts acting in good faith, but the indeterminate legal standard creates a second problem—the risk of overt or implicit censorship on the basis of viewpointor dislike of the speaker. Thus, in the recent case of delivered in a public place, an outrageousness is insufficient requirement to protect free speech, as it allows a jury to punish speech because of still its viewpoint. When tort injury conflicts with free the speech, Court because “in publicconcluded, free speech must win debate we must tolerate insulting, outrageous speech in order and even to provide freedoms protectedadequate ‘breathing space’ to the the by First Amendment.” concluded that, at least for speech C Y 30555_cdt_9-2 Sheet No. 24 Side A 08/09/2011 09:04:54 A 08/09/2011 24 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 24 Side B 08/09/2011 09:04:54 M K
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IGH 556 86 TAN . 957 . 957 H David AW
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EV OLOVE & See R
The Social The Social
. , 16 S , 16 Free Press v. L. . 611 (1968); (1968); . 611
. , 31 L , 31 . 1447 (2006); (2006); 1447 . At the risk EV XPRESSION AL EV 87 R E . 437 (1992); Paul (1992); . 437
R
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ELECOMM L. .
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T , 77 C Too Early for a Requiem: Requiem: Too Early for a EX U.
L. .
The New Journalism? Why Why The New Journalism? M ON (2008) [hereinafter S on Reporting of Fact Reporting of on . [Vol. 9 [Vol.. REEDOM OF REEDOM , 46 T 46 , , because these cases do , because L.J. 255 (2007). (2007). L.J. 255 F speech over the twentieth Franklin, A. Marc. (1990); . 1195 , 9 J. . , 55 A , 55 , 43 S.C. , 43 EV NT I R Examined Lives: Informational Privacy Privacy Informational Lives: Examined
. L. current law. And as a basis for
. UB Privacy, Tort Law, and the Constitution: Is Is Constitution: the and Tort Law, Privacy, . 139 (2001); Robert C. Post, Clementi EPUTATION Warren & Brandeis Wrong? Brandeis Warren & P
YSTEM OF OF YSTEM R EX EV S s many of these arguments in detail. detail. in arguments s many of these very limited remedy. The history of R
and between the press and others. the press and and between . and . 1373 (2000); Peter B. Edelman, (2000); 1373 .
HE T , 68 T 68 , T EV C
, tion: Legal tion: Legal Inhibitions
, 16 B.U. , 16 R .
. 1039 (2009); Ruth Gavison, Gavison, Ruth (2009); . 1039 Lake UP UTURE OF UTURE OF L. EV
F . Judging Journalism: The Turn Toward Privacy and Judicial Judicial and Privacy Toward Turn The Journalism: Judging R
MERSON L. HE Melissa A. Troiano, Comment, Comment, Troiano, Melissa A. t on Privacy vs. Free Speech vs. Privacy t on
TAN . J. L ON TECH. HIGH & TELECOMM. E T
ISCLOSURE
, , 2001 S , 2001 I. AL ]; Edward J. Bloustein, J. Bloustein, ]; Edward D , 52 S , 52 see also see Public Figurehood in the Digital Age in the Public Figurehood censorship under vague standards. censorship under , 97 C , OLOVE Privacy in Tort Law—Were Law—Were Tort Privacy in S . 326, 327 (1966); Julie E. Cohen, E. Cohen, Julie (1966); 327 . 326, HOMAS HOMAS
J. , T Bloggers As Public Figures Bloggers As Public 8/8/2011 EPUTATION ROBS IMITS OF R P L
. ANIEL Privacy and Speech and Privacy ELETE See, e.g. See, L. 403 (2011); (2011); L. 403 D . 107 (1963); Amy Gajda, Gajda, Amy (1963); . 107 HE HE
As a result, both becauseAs a result, both the design of and as a result of of the tort . If we must choose between disclosure privacy and speech in most If we must choose between disclosure T OT EV
N R
ONTEMP ECH O UTURE OF UTURE OF and the Subject as Object as Subject and the Privacy: Haunted by the Ghost of Justice Black Haunted Privacy: Warren and Brandeis’s Tort Petty and Unconstitutional as Well? and Unconstitutional Petty Tort Warren and Brandeis’s protecting tort privacy privacy, is a disclosure privacythe development of free and century thus reveals that we must ultimately make a choice—either categorically or on a case-by-case basis—between disclosureprivacy and freedom of speech. III. anything, this makes the good faith exercises line-drawing between press/non-press, public/private, speech all and emotional harm/protected the more difficult courts to perform; for increases it also the risk of bad faith or pretextual the evolution privacy remedies of the law, tort for disclosure against the press are largely unconstitutional under cases, what choice or choices should we make? In this Part, I argue that cases, what choice or choices In this Part, I argue that should we make? when disclosure privacy conflicts with free expression, we should choose free expression, subject to a few limited exceptions. Although this question has taken on new importance over the past decade, the question has engaged prominent scholars across several generations. (1970); D (1970); Anthony Ciolli, Anthony 87. Foundations of Privacy: Community and Self in the Common Law the Common Law Tort in Self and Community Privacy: Foundations of F C L. 86. volume make in this essay David Lat’s T Lat & Zach Shemtob, which it was created to address—actions against the media the against to address—actions created for publishing it was which emotional facts causing private ironically,harm. Perhaps disclosure-based is not when the press be more applicable of relief might theories as in contexts like involved, D 374 A Constitutional Problem in Privacy Protec in Privacy Problem A Constitutional Harry Kalven, Jr., Warren and Brandeis Were Righ Were and Brandeis Warren Traditional Defamation Laws Should Apply to Internet Blogs Traditional Defamation Laws Should Apply to Gewirtz, Regulation of the Press Regulation of the not involve public figures and thus seem to raise less of a First seem to raise and thus public figures not involve Amendmentthreat. Internet The has, blurred however, the distinction publicbetween and private figures, 30555_cdt_9-2 Sheet No. 24 Side B 08/09/2011 09:04:54 B 08/09/2011 24 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 25 Side A 08/09/2011 09:04:54
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Unlike Daniel 90 92 at 1008. 1008. at , 13 W. Id. . 221 (2001); Volokh, . 221 (2001); should be able to ES . 1149 (2005); Frederick Frederick . 1149 (2005); Fifteen years later, Fifteen years later, R
EV . 88 R
OC L.
. 383 (1960); Neil M. Richards, Neil M. Richards, 383 (1960); . 375 EV , 68 S R
endment critics of disclosure RIVACY L. Robert Post maintains that the
P extend to almost the entirety of . ts, and that we , 52 UCLA , 52 AL ORT ORT T tort can be balanced with the First you from me.” talking about , 48 C , 48 Most recently, argued Eugene Volokh 89 IMITS OF L Privacy HE
91 note 16, at 293. note 16, at 293. The Fourteenth Amendment and the Right of Privacy the Right of and Amendment The Fourteenth note 17, at 1050-51 17, at 1050-51 note supra note 87, at 328. 87, at 328. note note 87, at 1007-08. Post goes on to assert that “Common law courts, like like law courts, assert that “Common on to goes Post at 1007-08. 87, note supra supra 8/8/2011 supra
ELETE Free Speech and the Social Construction of Privacy Construction Social the and Free Speech D . Id. On the one hand are theOn the Am First On the other hand, privacy scholars typicallyOn the other hand, privacy scholars claim that disclosure note 17. note 17. OT 91 . 34 William (1961); Prosser, N EV O M K 92. Post, 92. thesearching rest of us are for ways to mediate between these two necessaryyet conflicting and to a flickering candle holding public disclosure tort, then, as regimes. We can understand the ‘rationalization the of course is which our times,’ the ‘fate of called in 1918 Weber what Max world.’” of the intellectualization, andabove all, . . . the ‘disenchantment and
Kalven and Zimmerman, who were writing solely about the disclosureKalven and Zimmerman, who were tort, Volokh’s First Amendment claims information privacy law. Diane Zimmermanfurther and suggested that the disclosure went tort inwas not only unworkable practice, but of action that, “created a cause however formulated, cannot coexist with constitutional protections for and press.” freedom of speech (1989); Roscoe Pound, Roscoe Pound, (1989); R of oversimplifyingfairly a have coalesced scholars debate, complex onearound two positions. of D 2011]T privacy. These scholars argueprivacy. These that the disclosure tort is unconstitutional, be jettisonedand should entirely the in interests of free speech. As early Brandeis with the great that “fascination Harry Kalven argued as 1967, trade mark, excitement law over the of growth, at a point and appreciationa key value have combined of privacy as to dull the normal criticaland commentators sense of judges and have caused them not to see the pettiness of the tort they have sponsored.” 88. Kalven, supra 88. Solove argues that the disclosure 89. Zimmerman, 89. 90. Volokh, 90. privacy serves important social interes strike a balance between preserving privacy and speech, over control injurious gossip while maintaining a robust commitment to speech of legitimate public interest. For example, disclosure tort serves a social purpose in the “maintenance of rules of disclosure tort serves a social purpose civility” that protect human dignity, and that in the “various and public concern’ test, one caninconsistent applications of the ‘legitimate trace the wavering of public line between the insistent demands accountability and the expressive claims life.” of communal Reconciling Data Privacy and the First Amendment the First and Privacy Data Reconciling Schauer, that “the rightto information – my right privacy your to control communication information of personally identifiable about me – is a right to have the government stop C Y 30555_cdt_9-2 Sheet No. 25 Side A 08/09/2011 09:04:54 A 08/09/2011 25 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 25 Side B 08/09/2011 09:04:54 M K C Y PM PM
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The problem 94 . [Vol. 9 [Vol..
96 note 87, at 129, 160. at 129, 160. 87, note restricts speech protected by the in its Gilded Age origins, and in note 17. matter because it applies the First supra of the modern First Amendment , supra But such cases are likely to remain outliers, note 18, at 1323-24. note 18, at 1323-24. EPUTATION 95 R J. L ON TECH. HIGH & TELECOMM. and that the law should do a better the law should do and that job striking a supra note 16; Volokh, note 16; Volokh, 93 , publicity, and disclosure. supra UTURE OF UTURE F
, , Brandeis , Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) Cal. 1998) 823 (C.D. 2d Supp. F. Grp., Inc., v. Internet Entm’t 5 , Michaels 8/8/2011 OLOVE S ELETE
D . See, e.g. See, . While my personal sympathies lie closer to the privacy advocates, I the privacy advocates, to lie closer personal sympathies While my How, then, should courts balance free speech against privacy in But what about the sort of “delicate balance” But what about the sort of “delicate that Solove calls for? OT 95 N O and appropriately so. As Brandeis himself grudgingly recognized later in life, a tort-based conception of privacy protecting against purely emotional harm must remain in a constitutional exceptional regime dedicated to speech, 93. Amendment, “speech apply to and can private concern.” of He argues Brandeisthat “reconciled the with privacy and free speech test,” newsworthiness D 376 “delicate balance”“delicate between and privacy in speech individual cases. balancethink on the First Amendment critics have better the of the argument respect to the disclosure with most of the tort, at least time. When the First Amendment critique applies context, it in the disclosure ought to triumph. Post is correct that, its protection of emotional harm and propriety,disclosure privacy protects against egregious breaches of etiquette. Fundamentally, because of the way it is structured injury, to remedy emotional tort privacy runs into almost intractable problems when it First Amendment, whether by the press or other speakers. First Amendment, practice? While speech critique the free of tort privacy should triumph where it applies, that we should recognize the First Amendment does not immunize all true statements by all speakers (or even all journalists). barring distribution of a sex the Internet a preliminary injunction video made (granting by Richards newsworthiness). of claims defendant’s the notwithstanding celebrity couple plaintiffs, 96. 94. Zimmerman, 94. with Post’s theory is that the core with Post’s theory offendprotects a right to in furtherance of of the robust exchange ideas and information. First Amendment rights must trump disclosure privacy disclosures of private information. except in cases of truly extraordinary This is the case not merely as a formal Amendment rather than common law interests, but becausefree speech is a more important value. of the common law disclosure tortAs Part II demonstrated, the design by well-meaningrenders it particularly subject to abuse courts as well as those who might use it as a pretext for censorship. In extraordinary cases, perhaps involving sexually-themed disclosures such as sex tapes, tort privacy might be able to survive a direct clash with the First Amendment. A few such cases impose liability for psychological injuries over free press challenges. 30555_cdt_9-2 Sheet No. 25 Side B 08/09/2011 09:04:54 B 08/09/2011 25 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 26 Side A 08/09/2011 09:04:54
97 PM PM is
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, a radio DJ (2000). (2000). 532 U.S. 514 (2001). 532 U.S. 514 (2001).
AW , all bets are off, and we , all bets are off, and L 377 RIVACY Bartnicki v. Vopper New York Times v. Sullivan P under the actual malice standard standards for private or limited-standards for private ORT ORT T ONSTITUTIONAL ONSTITUTIONAL is always constitutionally protected. C
, IMITS OF L HE
98 HEMERINSKY C civil or criminal punishment: RWIN RWIN , 532 U.S. at 535. at 535. U.S. , 532 , E
8/8/2011 But the Court also noted that if the journalist had 99 100 at n.19 (quoting Branzburg v. Hayes, 408 U.S. 665, 691 (1972)). 665, 691 (1972)). U.S. v. Hayes, 408 Branzburg (quoting n.19 at ELETE See, e.g. See, Bartnicki D . Id. First, if the information is not true disclosed Our holding, of course, does not apply to punishing parties for Our holding, of course, does not apply be frivolous It would obtaining the relevant information unlawfully. Amendment, does in these cases–that the First one no to assert–and on confers a license in the interest of securing news or otherwise, laws. violate valid criminal sources to or his news reporter either the provide could or private wiretapping documents stealing Although immune from is source nor reporter neither information, newsworthy flow of on the whatever the impact such conduct, for conviction news. If the information disclosed is not “lawfully obtained,” the press can OT 100 N O M K for public figure plaintiffs, lower or purpose public figures. quite press-friendly,but where is false the information and intentionally disclosed, the press can beheld liable return to defamation false statements law, which remedies of fact. Of defamation law after course, American Unpacking this standard suggests four to the exceptions general principle that press publication truth of the be held liable under a second theory. In telephone call that hadbroadcast a recording of an intercepted left been in his mailbox by an unknown person.Court held that even The though the journalist knew been illegally the conversation had obtained in violation of the federal Wiretap Act, the First Amendment protected its broadcast. This is consistent with the idea in First Amendment law that the press has no exemption from “generally-applicable laws”—that the press should have wide discretion in being able to disseminate ideas and v. Vopper, standardrecently reaffirmed this explicitly in Bartnicki 97. Court most (1979). The Supreme 443 U.S. 97, 102 Smith v. Daily Mail Publ’g Co., Even though Warren and Brandeis’s core case of disclosure of private of of disclosure case core and Brandeis’s Warren though Even embarrassingby the facts press is largely unconstitutional, not it does claimsthat all privacy follow are the press) (even against unconstitutional, Under current too. law, rule is that the well-established lawfully obtains“if a newspaper truthfulabout information a matter of public significance then state officials not constitutionally may punish order.” . of the highest . . publication a need information, absent of the D 2011]T 98. 99.
participated or solicited the wiretap, the First Amendment would not protect him from C Y 30555_cdt_9-2 Sheet No. 26 Side A 08/09/2011 09:04:54 A 08/09/2011 26 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 26 Side B 08/09/2011 09:04:54 M K
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of the private dment protections the Court deferred exemptions the from This interpretation of disclosure . [Vol. 9 [Vol.. 103 Bartnicki only of the disclosure tort, but h on matters of private concern press, under the theory that the note 87, at 129. 87, at 129. note Rethinking Free Speech and Civil Liability and Civil Free Speech Rethinking emination ofemination news generated by defendant’s claims of newsworthiness). of newsworthiness). claims defendant’s supra
But as noted above, such cases must But as noted above, such cases must , n does not allown does of embarrassingless information are and not the and not 105 Most courts tend to define what is 104 clash with the First Amen collection EPUTATION R J. L ON TECH. HIGH & TELECOMM. It also suggests, going beyond disclosure for a beyond disclosure suggests, going It also 102 1650 (2009). 1650 (2009).
. UTURE OF OF UTURE F
EV , , 532 U.S. 514. 514. U.S. , 532 Cohen v. Cowles Media, 501 U.S. 663 (1991) (holding journalist liable for liable for journalist (holding (1991) 501 U.S. 663 Cowles Media, v. Cohen R , Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) Cal. 1998) 823 (C.D. 2d Supp. F. Grp., Inc., v. Internet Entm’t 5 , Michaels
8/8/2011 L.
. Daniel J. Solove & Neil M. Richards, & Neil M. Richards, Daniel J. Solove OLOVE ELETE Bartnicki D . See . See, e.g., . See, . See, e.g. See, . A third exception under A third exception private current law is that disclosures of OLUM note 95 and accompanying text. text. accompanying note 95 and OT 102 101 105 N O 109 C that law-breaking. From this perspective, there is a crucial perspective, there From this distinction breaking between the informationlaw to obtain trespassing, by wiretapping, (whether hacking, innocentmeans) and the or other diss ordinary property,contract, tort, and regulatory allthat govern laws of us dictating affairs without in our daily of our expression. the content 103. S 103. breach of promise of confidentiality to a source over First Amendment objections). to a source over First Amendment of confidentiality promise breach of
information, but that this discretio but that information, D 378 moment, that restrictions sounding in trespass or other theories protecting againstthe collection problematic from a First Amendment perspective remedy when they the harms flowing from information. to the public is not of legitimate concern information that (or entitled“newsworthy”) are to a lower Amendment level of First protection. Solove relies on this exception that because when he argues speec the Supreme Court has hinted that is less protected than other kinds of speech, “has thus left open the Court to thrive.”an area for the public-disclosure tort quite readily to the media’s argumenttelephone that the intercepted newsworthy. conversation was the law probably overstates the vitality not the law probably overstates the vitality of disclosure-based theories of privacy more generally. The Supreme to second-guess the editorialCourt in particular has been quite reluctant judgments of journalists.For instance, in given to the press. As discussed earlier, a few such cases impose liabilitygiven to the press. As discussed earlier, for psychological over free press challenges, most famously injuries one Pamela Anderson against the granting an injunction to actress distribution of a graphic sex tape. press is the best judge of what sells papers, but certain kinds of outrageous disclosures the pale. In have been held to lie beyond such extraordinary cases, usually sexually-themed disclosures, involving tort privacy can survive a direct newsworthy by what is published by the barring distribution of a sex the Internet a preliminary injunction video made (granting by the notwithstanding celebrity couple plaintiffs, 104. supra 30555_cdt_9-2 Sheet No. 26 Side B 08/09/2011 09:04:54 B 08/09/2011 26 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 27 Side A 08/09/2011 09:04:54 PM PM
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publication before and particularly given publicationfor injuring 107 threat to national security 379 New York Times v. United at 730-40 (White, J., concurring). J., concurring). 730-40 (White, at that the normal remedy for use an old trope that runs after Id. the Pentagon Papers could not RIVACY P a newspaper is disclosing the facts or topics to be off limits to to be off limits facts or topics de. The case stands for the or other intimate bodily activities ORT ORT T sense power to censor, and modern the IMITS OF L HE area, it is hard to imagine a category beyond area, it is hard to Whitney v. California Whitney v. California Under current law, for example, it is a federal crime Under current law, for example, it 110 Given that courts have routinely held that the publication 8/8/2011 106 This statute is likely constitutional to the even as applied , New York Times v. United States, 403 U.S. 713, 726 (1971) (Brennan, J., , New York J., (Brennan, Times v. United States, 403 U.S. 713, 726 (1971) , Fla. Star v. B.J.F., 491 U.S. 524, 526 (1989). 526 (1989). U.S. 524, 491 v. B.J.F., Star Fla. , In the “Pentagon Papers” case of In the “Pentagon Papers” case of Restrictions on the publication lawfully of true, newsworthy, 111 ELETE 109 the Court held that publication of 108
D . E.g. . E.g. , More generally,courts are reluctant however, the to second-guess The fourth and perhaps largest exception to theThe fourth and perhaps largest principle of OT 109 107 N O M K 111. § 793(e). 18 U.S.C. concurring) (quoting Near v. Minn, 283 U.S. 697, 716 (1931)). (1931)). 716 Near v. Minn, 283 U.S. 697, (quoting concurring) 110. see Justice concurrence, regard, White’s In this harmful, dangerous, or otherwise “bad” speech is more speech rather than speech harmful, “bad” dangerous, or otherwise censorship. 108. (1979). U.S. 97, 103 443 Co., Publ’g Smith v. Daily Mail because of prior restraint concerns, but it says nothing authoritative because of prior restraint concerns, about whether the press can be punished national security. be enjoined absent a showing of a more serious be enjoined absent a showing of a more get an injunctionproposition that it can be hard to States than the Nixon Administration ma obtained facts invoke strict scrutiny, but imagine one could interests that could survive a strict scrutiny challenge. For instance, national security could trump the First Amendment if lawfully-obtained names of spies, or (to through the case law) the “publication of the sailing date of transports or the number and location of troops” or other time-sensitive military secrets. 106. J., dissenting). (Brandeis, (1927) 376 274 U.S. 357, Whitney v. Cal., remain outliers.remain Insofar public as the disclosure remedies tort Post’s it of etiquette, breaches only is harmful psychologically the most and would norms that breaches of social outrageous seem to satisfy this exception. is inpublic discussion real a very to Justice theory is built around this idea—traceable First Amendment Brandeis’ opinion in D 2011]T individualviews of citizenswhat about legitimate the topics of public debate reallydeclare The power to are. of the name of a rape victim is “newsworthy,”of the name of a disclosure of true, newsworthy, lawfully-obtained facts, butas only for anyone to disclose defense secrets that could used to the besecrets that defenseanyone to disclose for or to the advantage of any foreign“detriment of the United States nation.” that would satisfy this exception. that would satisfy protection the highest for true facts is the presence of a state “interest of order.” censorship concerns incensorship concerns this the disseminationof videos of sexual C Y 30555_cdt_9-2 Sheet No. 27 Side A 08/09/2011 09:04:54 A 08/09/2011 27 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 27 Side B 08/09/2011 09:04:54 M K , C Y PM PM
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115 . [Vol. 9 [Vol.. as a change of venue, the most extraordinary of cases. the most extraordinary the highest order” exception for order” exception the highest could take other measures less required to satisfy First Amendment , the state interest arrayed against the , the state interest arrayed against the punishing the press for publishing the a high-profile murder case whom the a high-profile murder case whom ast as strong as tort privacy rights. The recent WikiLeaks dispute garnered 116 Trial By Media: The Betrayal of the First Amendment’s Purpose Amendment’s First of the Betrayal The By Media: Trial J. L ON TECH. HIGH & TELECOMM. case, the Court held that the confidentiality of a statea the confidentiality of held that case, the Court The constitutional criminal procedure rights of the Central to the Court’s reasoning was the Central to the Court’s reasoning availability of a 8/8/2011 Nebraska Press v. Stuart 114 112 Gavin J. Phillipson,
In ELETE See D . Id. . Id. 113 By contrast, it is unlikely that disclosure privacy could qualify as a The problem with the “interest of with the “interest The problem OT 113 116 N O defendant would seem to be at le less restrictive means—rather than truth, it suggested, the state should first more modest step of try the of leaks from state employeestaking steps to reduce the likelihood to the press. in this case as well, the Court held for the newspaper, reasoningin this case as well, the Court held that restrictingbefore taking the blunt step of of true free flow the information in the press, the state rights, such restrictive of First Amendment postponementmedia of the trial until the frenzy had abated, jury instructionsoutside the trial, to disregard facts learned or even sequestration of the jury. 114. (1976). 427 U.S. 539 point made this has Phillipson Gavin scholar privacy law English The leading 115. recently. 112. (1978). U.S. 829 v. Va., 435 Landmark Commc’ns the constitutionality of disclosure privacy necessary to is that the showing exceptionsatisfy the high—the is extremely compelling government interest least-restrictive and means strict scrutiny. It is no coincidence example that the standard given here securityis harm to national causedby the disclosure of defenseor secrets dangerous technical information like the construction of bombs or destruction. In such weapons of mass cases the potential harm is lots of dead soldiers. sufficiently compelling interest except in cases seeking the withholding offree speech line of For example, in a information, verytrue but harmful interests other than national few security have survived the scrutiny that this exception requires. In the Landmark Press insufficiently strong interest to punishjudicial ethics investigation was an the press from divulging lawfully obtained information about an ongoing procedure. applied to materialsapplied for which actual an can prove government the and to national threat serious security. D 380 much speculation about could whether Assange punished be for the freedom of the press was of a constitutional magnitude—thefreedom of the press was of a constitutional fair trial rights of an accused defendant in enjoining reportage on his alleged trial court sought to protect by confession. 71 L. & Contemp. Probs. 15, 16-17 (2008). (2008). Probs. 15, 16-17 71 L. & Contemp. 30555_cdt_9-2 Sheet No. 27 Side B 08/09/2011 09:04:54 B 08/09/2011 27 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 28 Side A 08/09/2011 09:04:54
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. The Clementi (Dec. 10, 2010) 10, 2010) (Dec. LATE doctrines including the doctrines including , S federal Video Voyeurism 381 not participate in the secret (1977). (1977).
RIVACY P is any guide, the answer would norms, and it is hard to see any endment. Most clearly, the act of noted earlier, the disclosure tort ORT ORT §652D T to be relatively a straightforward case ORTS ORTS Bartnicki T IMITS OF L OF ) or other state tort or other state tort HE 118 ECOND (S See You in Court Mr. Assange in You See most jurisdictions. 8/8/2011 When a video like Clementi’s sparks a public debate on cyber- ESTATEMENT ESTATEMENT 119 ELETE R D . Let us return then to the example with then to the Let us return this essay began— which What if a newspaper received a copy of the Clementi video and OT 119 N O M K Prevention Act of 2004, Prevention Act of Facing the such a standard, exception of the highest order” “state interest for all but the be a poor fit would also egregious disclosure most tort cases. tort theory would permitwhether disclosure of the punishment something like the alleged sex video broadcast in who, like Ravi,punishment of someone was alleged to have secretly recorded a sex act would seem under my interpretation of the First Am be unlawful under the secret recording would http://www.slate.com/id/2276592. http://www.slate.com/id/2276592. 118. § 1801. 18 U.S.C. 117. Nick Bravin, Nick 117. disclosure ofdisclosure diplomaticthis exception, under cables and expertswere dividedthis disclosure even whether about could without punished be additionalas present such factors or solicitation hacking of leaks. D 2011]T bullying and acceptance orientations, what of different sexual was an easier case of non-newsworthiness for a non-press defendant becomes much more complicated because the video would then center be at the of a public debate. And when the debate centers around the contents of the privacy tort of intrusion into seclusion.privacy tort of intrusion Becausevideo the not was lawfully obtained, the punishment such of a defendant would be unlikely to offend the First Amendment. In addition, because such a the facts of case are an outrageous breach of social legitimate public concern in the secret sex tape of another, it could also be argued that this would be one of the rare cases that lacked any newsworthiness. But even though the First Amendment might not preclude liability, it be unclear would that facts like these would satisfy Asthe common law disclosure tort. sex tape were only shown to a smallrequires “publicity,” and if the covert that the video would come to number of people, with no likelihood circulate in the community, this would not satisfy the publicity requirement in decided to host a copy on its website—could the press be held liable for violating the disclosure tort? If appear to be “no.” Because the press did recording, lawfully the information would have been obtained by the press. Moreover, it is much harder in the case of press publication to be “of legitimate concernargue that the tape would not now to the public.” C Y 30555_cdt_9-2 Sheet No. 28 Side A 08/09/2011 09:04:54 A 08/09/2011 28 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 28 Side B 08/09/2011 09:04:54 M K C Y PM PM
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case that
120 Bartnicki
. [Vol. 9 [Vol.. RIVACY ared to recognize a First P ample, punishment secret of the et listeners or hidden cameras in act of expression is necessary to satisfy NVASION OF droom) that is (3) highly offensive (most droom) that is (3) highly offensive I J. L ON TECH. HIGH & TELECOMM. ETHINKING R
: 8/8/2011 at § 652B. § 652B. at ELETE D . Id. One who intentionally intrudes, physically or otherwise, upon the the upon or otherwise, physically intrudes, intentionally who One is concerns, affairs or private or his of another or seclusion solitude privacy, if the invasion of his for to the other subject to liability be highly offensive to a reasonable person. intrusion would Think back to why, in theThink back to why, last ex Recall also from that the example, the secret recorder had violated OT 120 N ONCLUSION O
All of the elements of intrusion are satisfiedAll of the elements of intrusion are by the example as well—we have (1) an intrusion (the secret recording) into (2) seclusion or private affairs (having sex in one’s be people would be outraged to find secr people would be outraged to find video, it becomes impossible it becomes video, contents those say that to not of are publiclegitimate this case, In concern. nature then, the disclosure of the tort could liability preclude injury enormous emotional even in a case of and widespreadpublication. Andresult the tort could the disclosure that case shows even its core fail to protect the as a theory limits of disclosure of liability. C differenceimportantbetween is an their bedrooms). However, there intrusion and disclosure—unlike disclosure, which requires the act of disclosure of words or images, no the intrusion tort. Publication is only relevant to intrusion damages when are computed. Thus, unless we are prep D 382 the common law tort of intrusion against seclusion.the common law tort of intrusion That tort provides that recorder of a sex tape was relatively unproblematic:the recorder Because by recordinghad broken the law punishment the tape, for its disclosure from a First Amendment perspectivewas less troubling because it of recording and not punished the act or disclosure. any act of speaking can be punishedBut if secret recorders for surveillance, why bother their subsequentwith punishing the disclosure at all, particularly if invoking a disclosure theory creates additional both in terms ofdoctrinal problems, the structure of the tort and its complicated relationship to the First Amendment? allows One answer is that disclosure punishment and deterrencedownstream viewers—those like the press who have of and whootherwise lawfully obtained the recording view or disclose it themselves. But we saw in the example both and the downstream users can invoke First Amendment protections not available to the secret recorder. 30555_cdt_9-2 Sheet No. 28 Side B 08/09/2011 09:04:54 B 08/09/2011 28 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 29 Side A 08/09/2011 09:04:54 PM PM
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or to take or to 121 the disclosure tort. Hamberger v. Eastman v. Hamberger 383 g it another illustration ofg it another can also remedy invasions of private of remedy invasions also can et recorder, secret listener, or listener, secret recorder, et from disclosure, the law should law should the from disclosure, RIVACY and Prosser traditions. It shares It traditions. Prosser and oblems than P closure are different and intrusion with disclosure the than a tort . 1099 (2002). . 1099 (2002). our privacy more directly than ecting the scope of publicdebate, n of already-collectedn of information. ORT ORT ate heightened First Amendment EV T feelings. Thus, as we structure legal as we structure Thus, feelings. R
L.
U. IMITS OF Informationas Contraband: The First Amendmentand L W note 102. note 102. privacy,” the intrusion model is a better fit is a better model intrusion the privacy,” HE supra , 96 N , 96 . 335 (2011). (2011). . 335 EV R
L. Because thenot create civil elements of the tort do
. 123 the intrusion the has been tort satisfied implicating without ENN 122 8/8/2011 P Moreover, if we are interested in protecting against what we against in protecting if we are interested Moreover,
Solove & Richards, 124 ELETE Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to and the Discourse, Memory, Amendment: and the First Capture Pervasive Image D . See The intrusion more tort shares Going beyond intrusion, there are other ways to remedy privacy , 159 U. , 159 OT 124 N O M K the First Amendmentthe First at all. Brandeis, Warren, the in origin common of high element the and information element of private the both makin person, a reasonable to offensiveness protections to protect private information information to protect private protections of information, accumulations or collections unwanted preventing focus on rather than preventing the disseminatio colloquially call “invasions of colloquially call “invasions Secret metaphor. of that understandings linguistic intuitive our with cameras would seem to “intrude” on our hurt us that about publications other intruder. Post’s argument that the privacy torts are best understood as remedies for as remedies understood best are privacy torts the that argument Post’s etiquette. Butgross breaches of social dis breachesmanners—whereasgood of disclosureprotects against emotionally against protects often intrusion harmful gossip, emotionally by a secr gossip, of the collection harmful 121. 449 F.2d 245 Dietemann v. Time, 1345 (7th Cir. 1995); Inc., 44 F.3d v. Am. Broad. Cos., 1999); Desnick Cir. F.3d 505(4th v. Capital Cities/ABC, Inc., 194 Inc. Food Lion, Rodney A Smolla, (9th Cir. 1971); Speech in Trafficking for Liability Amendment right to break Amendment news gathering of in pursuit laws D 2011]T 122. In a recent article, Seth Kreimer makes a creative effect.argument to this Seth F. Kreimer, Record liability for speech, thereby directly aff the intrusiondoes not implic tort concerns. 123. device in the secret listening a installed case of had intrusion a landlord in which of the famous the fact pattern 1964), is This (N.H. 239 A.2d a couple. But married intrusion bedroom of his tenants, spaces that do not collect information—for example, a pattern of harassing phone calls that calls phone harassing a pattern of example, not collect information—for do spaces that home. of a victim’s invade the tranquility secret video, harms that create fewer constitutional pr We have become accustomed to thinking about privacy in terms of some with torts, but there sharingare other torts four elements Prosser’s used to regulateinformation.torts that can also be the privacy all of or between intrusion and trespass, For example, there is a close analogy with the primary difference being that intrusion protects emotional harm from invasions into private areas or relationships, while trespass protects property rights from similar invasions. But trespass is in reality a kind of C Y 30555_cdt_9-2 Sheet No. 29 Side A 08/09/2011 09:04:54 A 08/09/2011 29 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 29 Side B 08/09/2011 09:04:54 M K C Y PM PM
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. [Vol. 9 [Vol.. was to prevent the presswas to prevent from note 12, at 123. at 123. 12, note Confidentiality has limits, too; rough tort law or other forms of 126 is more like Ravi’s tweeting in the supra , to avoid the conflict with First to regulate the competing demands trespassing or intruding into private otional injury of published words, but note 102. note 102. supra Recall that in the press privacythat in the press Recall cases, a less J. L ON TECH. HIGH & TELECOMM.
Privacy’s Other Path Other Privacy’s 125 127 8/8/2011 Solove & Richards,
ELETE Id. D . See Breach of confidenceBreach ishas been tort that another privacy The issues of privacy press and raised by the rise of social networks, OT 126 N O 125. & Solove, Richards privacy tort as well—protecting the privacy of the home from invasion, from invasion, home of the the privacy well—protecting tort as privacy createstort that another and First fewer Amendment problems than disclosure. D 384 underappreciated or of embarrassing disclosures as a tool to regulate information. harmful most notably, it typically applies onlyvoluntarily to duties that are assumed. But unlike the limits of disclosure, the limits of confidentiality its consistencyenhance Amendmentour Firstto with commitments robust public debate. instead assumed the breach of an duty. restrictive meansrestrictive than punishing disclosure collecting the information inplace, rather than allowing the the first state to directly censor the speech under theory. The press (or a disclosure others) can obtain by information it areas, or it can obtain Both through a leak. the breach of confidence tort or confidentiality rulesof generally allow the regulation more that is less troublingdisclosure in a way First Amendment from a perspective case becausethe is tort. This than the disclosure not the em confidentiality remedies of publicity and non-disclosure cases raise. Law will be that these necessary to determine whethera case Clementi suicide, or more like the tweets in of the democracy protesters Cairo’s Taksim Square. At the same time, it is important realize to that the harms from privacy are real. Just because the disclosure is largely tort unconstitutional, it does not mean psychological that many of the injuries it seeks to remedy are not substantial. A broader and more imaginative conception of tort privacy help us to protect can hopefully against some of those harms, either th incidents are likely to become like the Clementi suicide and WikiLeaks some of the most important and difficult facing our society in the Information Age. the Of course, law will not provide all but it answers, must provide some answers, if only law modeled on tort, and also Amendment values that the model produces. disclosure 127. 30555_cdt_9-2 Sheet No. 29 Side B 08/09/2011 09:04:54 B 08/09/2011 29 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 30 Side A 08/09/2011 09:04:54
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ELETE THE VALUE OF DETECTIVE STORIES OF DETECTIVE THE VALUE OR A A A D . Chicago Breaking News That same day, the main website pages of
On a recent Sunday morning, 4 OT
N ONCLUSION O M K Chicago, all six “breaking news” stories on the investigation:some connection with a police charges in a double homicide, charges in a girl’s death, girl found, a death garage, and a house in a parking fire. 13, 2011, 7:20 AM). 13, 2011, 7:20 13, 2011, at B2; 13, 2011, (Feb. 12, 2011), http://www.washingtonpost.com/wp- (Feb. 12, 2011), topnews. dyn/content/article/2011/02/11/AR2011021103591.html?hpid= II. Washington Post 1. Kari Dequine, Dequine, Kari Tulane University Law School. Professor of Law, * Associate 1. D III. N.Y. C 2. Baker, Robert D. McFadden & Al story focused on the sentencing hearing murder of Chandra Levy, a congressional intern murdered by someone who had kidnapped ten years her while she was jogging earlier. http://www.nytimes.com/2011/02/13/nyregion/13stab.html?_r=1&hp. http://www.nytimes.com/2011/02/13/nyregion/13stab.html?_r=1&hp. 3. Alexander, Keith L. B1 (Metro Edition); from New Orleans, carried news thatfrom New Orleans, people had been two young death, that a juryarrested for an arson had convicted a man of killing a waitress in a robbery, and that a 15-year-old escapee from a youth detention facility had been recaptured. were among Those three stories first two pages ofthe six main stories making up the the local section of the newspaper. I. coverage. In New York, the murder spree had been arrested. C Y 30555_cdt_9-2 Sheet No. 30 Side A 08/09/2011 09:04:54 A 08/09/2011 30 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 30 Side B 08/09/2011 09:04:54 M K C Y PM PM
. 193 . 193 4:43 EV
R
L.
. The Right to In many of of many In 6 ARV , 4 H
AW L . [Vol. 9 [Vol.. wrong, drug dangers, and an The Right to Privacy The Right lowered social standards and 8 TORIES AND ndane criminal matters. deciding such cases need to recognize S cases that seem to push some detective out-of-control media threatened that has a decidedly readership, national the story , http://www.nytimes.com/gst/mostpopular.html?src=hp1- as the investigation moves forward, and offer forward, and offer moves as the investigation J. L ON TECH. HIGH & TELECOMM. IMES ETECTIVE T ’ story on the murder spree arrest,’ story on the murder for example,
D , N.Y. , Conradt v. NBC Universal, Inc., 536 F. Supp. 2d 380 (S.D.N.Y. 2008); (S.D.N.Y. 2008); 2d 380 Supp. F. Inc., 536 Universal, v. NBC , Conradt New York Times 8/1/2011
e.g. indicating in a story that great public interest affected directly ISTORY OF , 5 at 195. at 195. and, though it took decades, ultimately changed privacy law as The H ELETE 7 D . Most Popular . Most . Id. . See And yet recent decisions by a handful of courts seem to hint at a In 1890 Samuel D. Warren and Louis Brandeis wroteIn 1890 Samuel D. Warren and Louis If there is one type of news type of is one If there routinely that is covered in media, it is New York Times 5 8 6 OT
N O Privacy the decisions, the courts criticize media both soundly and broadly, with great implications both for future cases and for editorial decisions on offers a historical perspective on news coverage. This symposium piece detective stories, it explores recent attitudesstories back to a time when patrician quashed similar coverage, and it warns ultimately that courts that they have a marked and potentially chilling unconstitutional effect on press freedoms. I. A of the subway arrest eighth most-viewed was the by readers that Sunday morning, only a few. limit to such These courts have punished coverage. media for reporting the arrest of a prosecutor, for publishing photos of a murder nude victim, and for reporting on somewhat mu sanctuary. The two authors criticized news reporting that they argued had invaded domestic tranquility, we know it. Their message was a simple one:we know it. Their message was a all persons deserved the right to be let alone and an
D 386 (1890). (1890). 0-M (last visited Feb. 13, 2011 7:30 AM). AM). 7:30 Feb. 13, 2011 0-M (last visited Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201, 1204 (11th Cir. 2009). 2009). Cir. 1204 (11th 1201, 572 F.3d Publ’g Grp., LLC, v. LFP Toffoloni 7. D. Brandeis, Samuel D. Warren & Louis what I am calling here “detective here I am calling what thethat report items news stories”: a crime or a criminaldetails of investigation an arrest or or a trial or a sentencing. For those living or some scene of the crime near the other police activity,an importantthe stories offer to neighborhood alert residents trouble, update them some comfort when them some a perpetrator is eventuallyThe stories caught. gone terriblydetail human relationships outlined investigating fearless moves to apprehend officers’ the suspect in a subway train Even witness spotted the fugitive onboard. after a worried though inexplicable disregard for humanity.inexplicable disregard also often They detail bold courage. The 30555_cdt_9-2 Sheet No. 30 Side B 08/09/2011 09:04:54 B 08/09/2011 30 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 31 Side A 08/09/2011 09:04:54
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He He 16 Their guidance 12 Prosser developed a But even cultured But even cultured 15 . 13 influenced by Prosser, 387 TORIES S Privacy . 383 (1960). . 383 (1960). EV R
§ 652D (1977). (1977). § 652D L. ETECTIVE
. D ORTS AL T OF OF nt of Torts, greatly ALUE OF , 48 C ) V HE Privacy ECOND (S
—one of the four privacy in the torts outlined 17
18 14 at 196, 214. 196, 214. at
8/1/2011 They seemed suggest that persons to their own of stature, and threatened and enthusiasm to crush the robustness for life. of at 412. at 412. crime stories). multiple cases involving as examples (listing at 413-14 at 214. at 214. at 214. at 214.
at 196. at 196. 9 11 ESTATEMENT ELETE D . See id. . See . Id. . See id. . See . Id. . Id. . Id. . Id. . Id. The Second Restateme William Prosser attempted to William Prosser attempted categorize existing privacy cases in a But in spiteBut this railing of even the day, media of the news against 9 OT 12 14 13 11 10 16 17 N O M K 15. William L. Prosser,
more explicit exception for stories involving crime,more explicit exception for stories suggesting strongly that those who reported on criminal activity and the resulting for what they had published. News, investigation should never be liable he explained without equivocation, includes homicides and other crimes, arrests, public raids, suicides, accidents, and police reports.
morality, D 2011]T R 18. would assistand “thoughtless” those “ignorant” who hungered for gossip, unwitting victims of the newspaper enterprise. intellect, and station in lifeintellect, decide should what should become news, suggesting that “personalgossip” of great interest to the uneducated socialmasses had lowered standards and morality. suggested that “the accused criminal” who,of course, would assiduously try to avoid after his publicity and would strongly desire privacy wrongdoing should not havePublishers could, in his wishes fulfilled. Prosser’s mind, satisfy the public’s obvious and understandable curiosity about their villains and victims and still within the stay comfortably bounds of law. contains similar sentiments Publicity Given to but goes even further. Private Life Restatement—defines explicitly those stories Warren and Brandeis suggested wouldin the legitimate public interest. These would be report the names of rape victims. include crime stories, even those that would-be editors like Warren and Brandeis recognized the news value in interest, stories in the public those involving people who have, in some way, “renounced the right to live lives screened fromtheir public observation.” law reviewcame 70 years later, article that Warren and Brandeis recognizedWarren the value in a different of sort newspaper reporting. Theprivacy, right to wrote, the two authors “does not prohibitpublication of matter any generalis of public or which interest.” C Y 30555_cdt_9-2 Sheet No. 31 Side A 08/09/2011 09:04:54 A 08/09/2011 31 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 31 Side B 08/09/2011 09:04:54 M K
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a man 24 public is entitled to be public is entitled . [Vol. 9 [Vol.. , “but they are nevertheless , “but they are nevertheless ant part of a news story. ant part ng Prosser’s list to include e, with many examples on based Privacy are accused of it may not only not are accused of it may r coverage that includes a suspect Restatement, commonly accepted by Restatement, commonly accepted death from the use of narcotics,” police
and reports of an illegal street race with an and reports of an illegal street race 28 25 J. L ON TECH. HIGH & TELECOMM.
20 8/1/2011 21 a photograph of whose husband is murdered; a woman 22 cmt. g. cmt. g. cmt. k, illus. 26. cmt. k, illus. 26. cmt. i, illus. 21. cmt. i, illus. 21. cmt. f, illus. 17. cmt. f, illus. 17. cmt. h, illus. 18. cmt. h, illus. 18. cmt. f, illus. 16. cmt. f, illus. 16. cmt. f, illus. 13. cmt. f, illus. 13. cmt. f.
27 ELETE D . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. Finally, the Restatement adds additional detective stories to the The illustrations Restatement help show used in the of the depth The clear message from the But the RestatementBut the of available the greatest wave saves news OT 28 27 26 24 25 23 22 21 20 19 N O
possible news coverage relatingpossible news coverage to crim by courts: murde actual cases decided news explored in and daily life” is later acquitted whose “past history accounts; Admittedly, the Restatement suggests that some former criminals who have been rehabilitated over many years ofmay have a cause action against journalists who report their criminal past, but the Restatement authors purposefully make such liability conditional not and, therefore, certain. “[P]ublishers,” the authors wrote, the authors “[P]ublishers,” permitted “are curiosity of to satisfy the victims[. associated who are closely ] and those . . as to its the public with them.” on trial for sedition who, it reported, is works where he can overhear key government conversations;
Crime’s unfortunateCrime’s Restatement the victims, sadly have explain, authors become have properly and, therefore, event of a news part become and an import of public interest persons D 388 accompanying photo of a driver’s father who refusedbe interviewed. to reports, “and many other similar matters even of genuine, if more or less deplorable, popular appeal.” “publications concerningcrimes,homicide arrests, and other raids, police suicides, . . . accidents, fires, . . . a category of acceptable news, broadeni police raid and resulting coverage of an unconnected customer; coverage for those personsbelieve police are responsible for criminal activity: “Those who commit crimeor seek publicity but may make everyseek publicity but possible effort to avoid it,” the echoingRestatement notes, Prosser in informed.” persons of public interest, concerning whompersons of public the 30555_cdt_9-2 Sheet No. 31 Side B 08/09/2011 09:04:54 B 08/09/2011 31 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 32 Side A 08/09/2011 09:04:54
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1774-1789 1774-1789
, and aimed to 31 ONGRESS C s very much focused cases. The Minnesota —had published a story 389 TORIES S ONTINENTAL ONTINENTAL C [sic]of conducting and just modes ETECTIVE e would necessarily violate the statute D whereby oppressive officers are shamed are shamed officers oppressive whereby While the case wa The Saturday Press generally and lauded and its the press Olson v. Guilford, 174 Minn. 457, 461-62 (1928)). (1928)). 461-62 Minn. 457, 174 v. Guilford, Olson ALUE OF , the authors of the statute wished to help , the authors of V ex rel. ex OURNAL OF THE OURNAL HE was theof these first 29 tory newspaper, magazine or other periodical.’” 8/1/2011 Though the statute had a commendable purpose, the Court at 717 (quoting I J (quoting 717 at at 710. at 710. at 709 (quoting State 709 (quoting at at 701-02 (quoting 1927 Minn. Stat. 10123-1 to 10123-3 (Mason’s)). 10123-3 (Mason’s)). Stat. 10123-1 to 1927 Minn. 701-02 (quoting at 33 ELETE The Right to Privacy D . Id. . Id. . Id. . Id. But the Supreme Court found the statute a violation of the But the rich goes beyond for detective stories of protection history Near v. Minnesota The publication at issue— OT 33 32 31 30 N O M K
because it “circulate[d] charges of reprehensible [criminal] conduct,” about a Minneapolis Jewish “gangster” and how lawabout a Minneapolis Jewish “gangster” enforcement officials apparently allowed his criminal deeds to continue. The article, quoted at length by the dissent, was decidedly anti-Semitic and admittedly disgusting at times. an articl Such statute at issue made it a public nuisance to “‘malicious,sell any scandalous and defama promote the welfare and to public assaults stop physical at the angry featuredhands of those in sleazy, push-the-envelope detective scandalous reporting as publications; the statute condemned welfare’” “‘detrimental publicand to thegeneral to morals As in they true or false. constitutionalright a free to press. the constitutionalityon preliminary injunction, of a theCourt quoted the Continental Congress more importance in reporting wrongdoing, especially the wrongdoing of besides consists, [reporting] of this importance “‘The leaders: government its in general, in arts and morality, science, of truth, advancement the diffusion of liberal . . . sentiments affairs.’” or intimidated,into more honourable 29. (1931). 697 283 U.S. Near v. Minnesota, courts in privacy cases in privacy courts the nation, across is that crime even news, crime robustly, that is reported news is protected the under First Amendment value. for its news D 2011]T in 1948, 1931 and again in both Interestingly, definition. mere scholarly the United Supreme States Court decided cases involving detective draftedstories and opinions very much the reasoning in line with put forth by Warren and, later, Prosser. and Brandeis Both cases found unconstitutionalthat made statutes the selling of salacious detective law.stories against the 104, 108 (1904)). 104, 108 (1904)). decided it would not fit within the confines of the Constitution. the fit within the confines of would not decided it better society by ridding it of scandal sheets. C Y 30555_cdt_9-2 Sheet No. 32 Side A 08/09/2011 09:04:54 A 08/09/2011 32 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 32 Side B 08/09/2011 09:04:54 M K C Y PM PM
and, 2:46 even
37 42 Time v. Girl Slave to , Headlined 38
June 1940
40 , deeds, or pictures, deeds, or 36 Lawmakers had Lawmakers 35 Smith v. Daily Mail . [Vol. 9 [Vol..
minorsfrom the exciting 44 Bargains in Bodies ), 443 U.S. 97 (1979). offender’s name as part of crime was titled morewas titled sensationally: The appeals court had found the The appeals court § 1141 (McKinney 1946)). 1946)). (McKinney § 1141 39 . AW Daily Mail” Daily L , or accounts of criminal , or accounts came seventeencame a similarlater. There, years ENAL ENAL
34 J. L ON TECH. HIGH & TELECOMM. the Court rejected a claim against brought a 43 , The statute, it found, was unconstitutional. Girls’ Reformatory 41 , 333 U.S. at 510. at 510. U.S. , 333 , and 8/8/2011
at 508 (quoting N.Y. P at 508 (quoting at 508 n.1. at 511. at 511.
ELETE D . Winters . Id. . Id. . Id. . Id. . Id. Winters v. New York v. New Winters Here, issue publication at the But here again the Supreme upheld Court magazine the right of the The Court later would later affirm protection for detective stories in , where the plaintiffs’ claim arose from an article, where the plaintiffs’ claim arose from sensationalized that OT 41 40 39 35 37 36 N O 42. (1967). 388 385 U.S. 374, Time, Inc. v. Hill, 43. (“ Co. Publ’g Smith v. Daily Mail a crime.such a publication making statute a name despite a rape victim’s newspaper published case, a small Florida In this 536-37 (1989). Fla. Star v. B.J.F., 491 U.S. 524, 44.
statuteof up made “‘principally anything publish crime to it a made news, police reports criminal or stories ofor stories deeds of bloodshed, or crime[.]’” lust hoped that such a prohibition would protect would protect such a prohibition hoped that “criminal news and stories of bloodshed, lust or crime.”
38. Div. 1944). App. 231 (N.Y. 230, People v. Winters, 48 N.Y.S.2d articles included the decidedly sensational newspaper that had published a juvenile coverage. And a few years after that, the Court protected even more explicit news coverage of a rape, holding it “involved that a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.” 34. (1948). New York, 333 U.S. 507 Winters v. D 390
as an earlier appeals court explained, “[t]heas an earlier appeals stories [were] embellished and gruesomewith pictures of fiendish crimes, and [were] besprinkled of victims and perpetrators.”with lurid [p]hotographs though the article focused the crime on a reenactment of and not the crime in itself. A little more than a decade later, Publishing Company
statute constitutional morals through the because it protected community paternalistically guiding editorial hand of the legislature. Headquarters Detective, True Cases from the Police Blotter Headquarters Detective, a Love Cult to publish the crime to publish. “Though we can see news it wanted nothingthese magazines,” the of any possible value to society in Court wrote, “they are as much entitled to the protection of free speech as the best of literature.” a series of cases involving more traditional crime coverage. In Hill a home invasion and kidnapping,justices wrote that they had “no the doubt” that such coverage was “a matter of public interest[,]” 30555_cdt_9-2 Sheet No. 32 Side B 08/09/2011 09:04:54 B 08/09/2011 32 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 33 Side A 08/09/2011 09:04:54 PM PM
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television EWS OR Detective Detective N 45
: Dateline URDER 391 M , “[o]ur recent, “[o]ur decisions S ’ TORIES S episode, anchor Chris Hansen that the press had gone too far ODEL es, even ones involving identities ? segment of the M that the press brings the “beneficial effects of self the First with Amendment and punishpublication the truthful of ETECTIVE Daily Mail Daily Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 469, 492 U.S. 420 Cohn, v. Corp. Broad. Cox news and is, therefore, protected. D See also See ALUE OF V the “newspaper enterprise,” and as Warren note 7, at 195. nd actors pretended to be young teenagers and ALLA AND HE F supra To Catch a Predator S ’ ENSATIONALISM could report deeply and sometimes embarrassingly could report deeply and sometimes S To Catch a Predator 46 , 443 U.S. at 102. , 443 U.S. at 102. 8/1/2011 ROSECUTOR P ELETE
UNISHABLE D . Daily Mail . Daily P In very recentIn very times, however, a handful of courts have troublingly districtcase from a federal Perhaps the best example of this is a As the court synthesized in synthesized court As the In the years that followed earlier privacyIn the years that followed scholarship, the publication OT 45 N O M K demonstrate that state action to action that state demonstrate standards.” constitutional satisfy seldom can information (1975), a case involving a rape and murder and the publication of the victim’s name, in which which name, in victim’s the of publication murder and the and a rape involving a case (1975), for the newspaper and wrote the Court found The Court sided with the The Court sided with newspaper. the D 2011]T posted chatty things online, occasionally reaching adults only too happy worked with group that the vigilante calls itself Perverted Justice and with local police. Each production was a televised sting operation: Perverted Justice workers a questioned and criticized the depth of certain crime reporting. They have sided, sometimes surprisingly, plaintiffs in cases that parallel with appropriate coverage in thesome examples of what is considered Restatement and elsewhere. In some of those decisions,the courts have for reportingheld publications potentially liable things that seem to be somewhat routine detective stories. court involving the about criminal actors and even crime victims without fearing liability. about criminal actors and even crime victims without fearing liability. When a perpetrator or a victim argued continues in reruns.program that aired on NBC and During the production of a typical and brought a lawsuit for damages, such plaintiffs generally lost becauseand brought a lawsuit for damages, the news media was able to shield it argue that, above all, crime news is stories, even and salacious scandalous on victims,of crime identitiesjuvenile of criminal defendants, and The press expression. crimes, were protected details of sensationalized was free. them, it seemed, that reported II. A public scrutiny upon the administration of justice.” of justice.” administration the upon public scrutiny 46. Warren & Brandeis, of the Second Restatement,of the Second and the parallel reasoning somewhat protecting sensationalistic media news jurisprudence in Supreme Court have crimestories reporting events crime news, most news regarding been protected by courts. As painful as such stories may be for both perpetrators and victims, Brandeis calledit, C Y 30555_cdt_9-2 Sheet No. 33 Side A 08/09/2011 09:04:54 A 08/09/2011 33 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 33 Side B 08/09/2011 09:04:54 M K
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the teenager. the teenager. To Catch a Predator television episodes television episodes magazine: “could I . [Vol. 9 [Vol.. Esquire
teachers, a medical a doctor, y of anyone except y of anyone 48 , Sept. 1, 2007, at 232. The facts described described 1, 2007, at 232. The facts Sept. , nfronted the men with transcripts of “has anyone sucked you”; and “just set up a sting in Murphy, Texas, north program was taped—communicated was taped—communicated program To Catch a Predator SQUIRE , E workers: he was William Conradt, a Texas workers: he was William Conradt, J. L ON TECH. HIGH & TELECOMM.
47 This Man Will Die This Man To Catch a Predator Catch a Predator To To Catch a Predator To Catch 8/1/2011 To Catch a Predator
Dateline ELETE D . Id. Communicating with an underage person on the in Internet a In 2006, At first, the online conversations betweenAt first, the online conversations “Wil” 56-year-old and This 56-year-old man was a surprising suspect, even for the OT 48 N O feel your cock”; “how thick are you”; “ifeel your cock”; “how thick are you”; to feel your cock”; want “maybe you can fuck me several times”; man had confessed to the child attalking about this has me hard.” The the computer that “he liked young boys.” herein are taken from this magazine article. article. this magazine herein are taken from The Perverted workers posing Justice as children would then agreeto meet the men. surprise of these suspected pedophiles, Much to the the house was wired for video and sound, NBC reporter Chris Hansen theappeared instead of child and co their online and police arrested sex talk, the men as they attempted to Men caught in leave the home. have included soldiers, police officers, minister, and a rabbi. online with the “teens,” sometimesonline with sending explicit of their photographs and often usinggenitalia suggesting a meeting language in explicit sexual a house empt believed to be at what they Tonight on 47. Luke Dittrich, Justice process, see of the Perverted For a somewhat biased description to hit on them in cyberspace.them in on to hit unsuspecting These adults— overwhelmingly male in and seemingly matter no droves, the in city which the D 392 the “child” were friendly, but they soon turned sexual. Here are a few of the “child” were friendly, but they soon the communications sent by the adult to the boy over the course of their two-week online relationship, as reported by producers eventually went to Conradt’s house to arrest him. Conradt as apparently realized that an arrest was imminent and shot himself prosecutor, the chief felony officer for a nearby county. He had once run prosecutor, the chief felony officer “Wil” had given the boy enough unsuccessfully for a county judgeship. information about him so that he was easily outed as Conradt by Perverted Justice researchers behind the scenes. sexual manner is a crime in itself, and the police and of Dallas. A man calling himself Wil—a 56-year-old who pretended to an actor who, withbe a 19-year-old college student—contacted Perverted Justice’s guidance, pretended to be a lonely 13-year-old boy father, and a “no good” stepfather.with divorced parents, a “neglectful” The “boy” pretendedaccessing to be the Internet from a neighbor’s empty house where he was dog sitting. seasoned 30555_cdt_9-2 Sheet No. 33 Side B 08/09/2011 09:04:54 B 08/09/2011 33 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 34 Side A 08/09/2011 09:04:54
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ORNING ORNING Dateline NBC M
51 ALLAS , D 393 TORIES and protect citizens, so when S had, concluding that “reasonable there is no question it that is eschool teacher had been arrested, eschool teacher had 49 bounds of decency” and deciding ETECTIVE that does not include the language that does not include the language deserve about the criminal to know D If it was news (news that Conradt If it was news 50 dismiss the proceedings. me of an extraordinarily harmful sort—the ALUE OF V HE and that NBC was in a unique “position of . 1039 (2009). . 1039 (2009). EV Judging Journalism: The Turn Toward Privacy and Judicial Regulation of of Regulation Judicial and Privacy Toward Turn The Journalism: Judging Suddenly, the crime reporting recognized as absolutely Ex-Mabank Teacher is Named in AbuseSuit R
52 L.
. 8/1/2011 AL at 397. at 397. ELETE , 97 C D . Id. Moreover, the court used journalism ethics highly abstract When the law that a prosecutor breaksWhen the law that involves a potential sexual But in the case stemming from NBC’s news coverage, one filed by As I have suggested previously, As I have A jury, the judge explained, could decide that what happened to OT 52 N O M K provisions against NBC. The opinion includes principles from the legitimate by the Restatement authors and Supreme had Court justices suffered a serious setback. that oath is broken,that oath constituents important news when a prosecutor breaks the law, even if the law that is law, even if the breaks the news when a prosecutor important whole. society as a other than victim one with no physical broken is Prosecutors the law an oath to uphold take makes headlines. violation and it necessarily encounter with a child—a cri story and the public’snews value of the need to know is that much greater. Before in fact, Prosecutor his own fall from grace and suicide, interviewedConradt had been in a news preschool story about a teacher’s arrest charges. on sexual abuse 49. Amy Gajda, Gajda, Amy 49. the Press police enteredpolice died He his home. a self-inflicted from to wound gunshot the head. D 2011]T himself obviously embraced) that a pr himself obviously journalists, the federal trialsaw little or no news value in the court judge story that a prosecutor allegedly sexual broke the law by using strongly language while communicating with a person he thought was a 13-year- old boy. Instead, in an opinion conductminds could differ as to whether NBC’s was so ‘outrageous and extreme’ as to exceed all possible there is no question that it that a prosecutor was news would be charged as part of a sting against pedophiles. Conradt’s sister claiming that the prosecutor suffered intentional infliction of emotional at the hands of distress the written by Conradt to the child, the judge strongly criticized NBC for puttingin the position that it Conradt against NBC in its motion to 50. Bill Lodge, Lodge, Bill 50. Sept. 22, 1993, at 31A. at 31A. Sept. 22, 1993, 51. 2008). 380, 396 (S.D.N.Y. 2d 536 F. Supp. v. NBC, Conradt power” to recognize that Conradt would be emotionally harmed by NBC’s actions. Conradt was not news C Y 30555_cdt_9-2 Sheet No. 34 Side A 08/09/2011 09:04:54 A 08/09/2011 34 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 34 Side B 08/09/2011 09:04:54 M K
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E Conradt , the judge decision, a ODE OF , C mpletely contradicts Conradt . [Vol. 9 [Vol.. OURNALISTS J To Catch a Predator It also co ’s se provisions include the highly e same way. As long as reporters as reporters As long way. e same the trial court decision in ROFESSIONAL ROFESSIONAL P Dateline
The court walked through The court walked the journalistic 54 56 cause a reasonable jurycause a reasonable find that it failed could to J. L ON TECH. HIGH & TELECOMM. OCIETY OF OCIETY http://www.spj.org/pdf/ethicscode.pdf). http://www.spj.org/pdf/ethicscode.pdf). 8/1/2011 NBC, the judge suggested, had taken on a cause, had suggested, had taken on a cause, NBC, the judge
at 397 (quoting S (quoting 397 at at 398. at 398. at 397-98. 55
ELETE D available at available 53 . Id. . Id. . Id. . Id. It is also remarkable that Moreover, the language in the decision is arguably broad enough to Such a decision is especially troubling ethics provisions because the OT 56 54 55 53 N O
the way in which the Restatement defines news today when it lists crime stories as newsworthy matters, even if they are of more or less deplorable popular appeal. But in allowing the intentional-infliction-of-emotional- court judge very clearly rejected those distress case to go forward, the trial broad and traditional—in both a legal and a journalistic sense— parameters of news. In fact, the decision allows for exactly the situation reasonable jury could find a valid intentional infliction of emotional distress claim based on the news media’s failure to show good taste, its pandering, its lack of judiciousness, and its creating, rather than reporting, news. contradicts decades privacy of law. Certainly the arrest of a prosecutor on child sex charges is the sort of “public interest” news Warren and suggested that some news would Brandeis hinted at in 1890 when they in fact be in the public interest, and what Prosser had suggested more included crime within his strongly in 1960 when he purposefully definition of matters of popular appeal. are tipped off by police, it seems, under the are tipped off by police, it seems, analysis and decided for itself that the news of a prosecutor’s arrest for itself that the news of a prosecutor’s analysis and decided is of no news value. allow any judge to cast a critical eye and analyze nearly every on-the- th in crime involving story news scene
wrote, could be liable be wrote, could be liable and panderedshow good taste to lurid curiosity coverage of in its Conradt. (1996), Society Code Journalists’ Professional for finds and of Ethics not that violating for be liable could NBC only such violationsbut that them, thecould be for the basis intentional infliction of emotional distress claim. D 394 “fail[ed] to be judicious about publicizing“fail[ed] to be judicious filing of allegations before the not livedcharges,” and had up to journalism’s ethics principles by making news instead of reporting it. on which the court reliedon which of objective ethereal, incapable are purposefully definition, and not mandatory. The subjective suggestionjournalists “‘[s]how that taste [and] [a]void good pandering to lurid curiosity.’” 30555_cdt_9-2 Sheet No. 34 Side B 08/09/2011 09:04:54 B 08/09/2011 34 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 35 Side A 08/09/2011 09:04:54 PM PM
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395
a person featured in the 57 TORIES S is a property-based action, it its magazine.Nancy Benoit’s magazine’s use of nude photos “Indeed,” the court wrote in § 652D cmt. f (1977). f (1977). cmt. § 652D
62 ETECTIVE 61 D magazine publishedphotographs ten Hustler ORTS T
OF OF ALUE OF 63 ) V Hustler
HE 60 59 ECOND Christopher a professional Benoit, also wrestler, (S 58 decision in only recent case is not the court which a 8/1/2011 Conradt at 1213. at 1213. at 1209. at 1208. at 1208. at 1204, 1209. 1204, 1209. at ESTATEMENT ELETE D . Id. . Id. . Id. . Id. . Id. In that case, Even though the right to publicity The Second, the court held, the news story that accompanied the The Eleventh Circuit decided the Benoit matter and necessarily had First, the court decided, the photographs had absolutely no news OT 61 62 63 60 59 N O M K
has sided withhas sided a plaintiff media over news in a crime-related news concerns case. A second example reporting murderthe 2007 spousal of a female professional wrestler and taken years before to illustrate its story about the murder.taken years before killed his wife, Nancy Benoit,killed his wife, Nancy and then committedtheir child, and suicide. Nancy Benoit modeled had in the years before her wrestling career had posed and nude for a photographer. After her murder, which was international news, 58. 2009). Cir. 1204 (11th 1201, 572 F.3d Publ’g Grp., LLC, v. LFP Toffoloni from that nude sittingin two pages of right-to-publicitymother brought a claim against Hustler. generally an exception contains for newsworthiness. if a In other words, photograph itself has newsor that value photograph has a connection story, with a published and valid news photograph would have no viable claim for a property right in his or her image and would not have a viable action against media published that it: of publicity gives way the right “[W]here the publication is newsworthy, to freedom of the press.” 57. R 57. of which the Restatement authors warn: the successful warn: authors Restatement the of which of news stifling seek only not “not who would by one interest the public in decidedly effort to avoid it,” i.e., every possible but [would] make publicity the ofalleged perpetrator family. a crime and his D 2011]T value themselves; the three suggested that had the photos been judges published by a magazinestory, “the without an accompanying publication would not qualify within the newsworthiness exception” to the right to publicity in Georgia. explaining its news judgment regarding the photographs, “people are nude every day, and the news media does not typically find the occurrence worth reporting.” to consider the news value of the photographs and of the Hustler story itself. In a unanimous decision, the judges decided in favor of Nancy Benoit’s family and against Hustler. C Y 30555_cdt_9-2 Sheet No. 35 Side A 08/09/2011 09:04:54 A 08/09/2011 35 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 35 Side B 08/09/2011 09:04:54 M K C Y PM PM
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“The “The 69
70 The court then 68 . [Vol. 9 [Vol.. The court explained, 66 The biography may have had may have The biography a brief paragraph repeating its 64 cident of public concern. We We concern. public of cident when it becomes morbid and sensational when it becomes morbid and sensational not connected to any matternot connected to of public J. L ON TECH. HIGH & TELECOMM.
67 at 1211. at 1211. 8/1/2011 Interpreting Georgia that law, it suggested “timeliness” and
at 1212. at 1212. at 1210. at 1210. at 1212. at 1212. at 1210. at 1210.
65 ELETE D . Id. . See id. . See . Id. . Id. . Id. . Id. . Id. Finally and most troublingly, the court wrote that it was convincedtroublingly, the court wrote that it Finally and most The court closed its opinion with The court closed its opinion with disagree. [Hustler] would have us rule that someone’s notorious death death someone’s notorious rule that have us [Hustler] would images of of any and all the publication blanche for constitutes a carte images whether those of regardless life, or her his that person during those private and regardless of whether kept intentionally were relation to the in any images are of The courtRestatement and offered its own then turned to the OT 67 68 69 70 66 65 64 N O
concern. some news value alone but not enough to bring the photographs into the photographs not enough to bring value alone but some news the exception,newsworthiness decided, the court despite the the fact that article specifically Benoit’s mentioned Ms. days and focused modeling on her life story. were that the nude photos
“relatedness boundaries”an end could put public scrutiny to even when an incident in may be one the public interest. photos—a “brief biography”—was “brief photos—a “merely incidental”publication to the nude make the itself not could and, therefore, photographs, of the photographs into value. anything of news D 396 photographs to thebear no relevance” news story, the court wrote, and explained that it worried any that should it decide the case other way, all magazinesnude photographs “would be free to publish any of almost anyone without their permission, simply because the fact that they were ‘newsworthy.’” caught nudeas on camera strikes someone explained that, under reasoning based upon the Restatement, the photographs “in no conceivable way” related to the murder. decision that the photos did not qualify for the right to publicity’sto qualifydecision that the photos did not theright for exception for newsworthiness: “These private, nude photographs were not incident to a newsworthy article; rather, the brief biography was assessment of the newsworthiness provisions under these facts. It that some actresses may keep somefocused on language that suggests matters private, that news ends the newsworthiness of a story ends prying for its own sake, and that when those with decency would have no interest in it. 30555_cdt_9-2 Sheet No. 35 Side B 08/09/2011 09:04:54 B 08/09/2011 35 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 36 Side A 08/09/2011 09:04:54
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71 part for any and 397 been reported in thebeen reported in news , including decisions made TORIES S case is not so much its decision so much its decision case is not ng desire on her e celebrity’s past, and that past of the court’s language thatof the court’s the evidence the sometimes-held belief ETECTIVE Benoit D ALUE OF V HE at 1212. at 1212. 8/1/2011 at 1213. at 1213. These are indeed remarkable sums for photographs These are indeed remarkable sums that the ELETE 73 D . See id. . See . Id. Moreover, there journalistic is at least some potential link between It is also remarkable that the court would find Ms. Benoit’s life What is remarkable aboutWhat is remarkable the The trial court hearing the caselater quote experts who would OT 72 71 N O M K 2010). 23, Ga. Nov. at *5-6 (N.D. 124733, LEXIS U.S. Dist. 2010 73. No. 1:08-CV-421-TWT, Publ’g Grp., v. LFP Toffoloni all publicity, something may that explain her involvement with professional wrestling and ultimately the professional wrestler who became her husband and murderer. fact that she posed nude, The even if she later changed may reveal an important her mind, and relevant dimension It may also to her life. that women must take off their clothing to achieve celebrity. This link between the photos and something more acceptably newsworthy gives some potential news value, albeit minimal, the photos themselves. to As the Restatementrepeatedly authors note, but as the judge in the story, at least in the court’s concluding language, not newsworthy. language,story, at least in the court’s concluding not newsworthy. story of someone who is murdered,Clearly there is some value to the life given that such news coverage is routine in news media today and given that the story of Benoit’s own murder became international news. the nude photographs and the news article—one the court complained took up only of one-sixth the two-page spread. Any life story of a celebrity would necessarily include th would include some embarrassing moments for publicity’s sake alone. Here, the fact that Ms. Benoit posed nude stro least an initial at have indicated may media, despite the fact that the murders made international headlines and even though the court found Nancy Benoit to be figure. a public that a right to publicity existed in the photographs of Nancy Benoit or of Nancy in the photographs to publicity existed that a right magazinethat the seemedto have created an effort to use a story in the strength Instead, it is the images. photographs rated news value scale. on any conceivable an absolute zero court’s mind, bore “no relevance”The photos, in the and were to news completely unrelated to anything that had
appeals court found had absolutely no news value.
incident photographs” to the photographs and “these neither were related in time nor concept to the current incident of public interest.” D 2011]T opined that Ms. Benoit was such a “celebrity,” in fact, that the wouldphotographs themselves at up to $200,000 and that by be valued publishing the ruined photos Hustler had the market for a tribute DVD to Nancy Benoit’s nearly $300,000 in profits that could have brought estate. C Y 30555_cdt_9-2 Sheet No. 36 Side A 08/09/2011 09:04:54 A 08/09/2011 36 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 36 Side B 08/09/2011 09:04:54 M K
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74 t many persons would be a seemingly property-rights- onal prying for its own sake? Do the photos; the court itself noted understand whatIs real news is? is a possibility that a court could dly become a part of our local part of a dly become or decisions? Would a mention in a be wise to consider any carefully ensational prying for its own sake? ensational prying for its own sake? § 652D, cmt. f (1977). f (1977). cmt. § 652D, . tion of certain nude photographs. nude photographs.tion of certain that is, under the First Amendment, murder the sort and nude photographs Warren and Brandeis believed required ORTS session be a privacy T news media. The opinions in the Benoit OF OF decision too could have a chilling effect. It decision too could have a chilling effect. ) J. L ON TECH. HIGH & TELECOMM. Benoit ECOND (S 8/1/2011 cases also suggest that courts are feeling far freer to decide the ESTATEMENT ELETE D And, finally, is this story of a Because these questions are not answered in any way that protects This is, of course, not to suggest that Hustler made the correct, made the correct, suggest that Hustler of course, not to This is, The opinion then, though deciding Benoit OT N O 74. R 74. case overlooked,case crime have victims sa even national into their Inquiry dialogue. inquiry lives—including into events outside the crime of news part of the appropriate and, an itself—is First Amendment. protected by the therefore, D 398 news story of such a nude photo a more cultured guiding hand in news of thing that is decidedly morbid and s of more or less deplorable popular appeal and, therefore, protected? news publications, the holds that there are some things from a celebrity crime victim’s past that are off limits, even when events exist.photographs of the event or Any wise news editor, decades- it seems, should think twice before publishing old photographs of a celebrity, as there photograph from a crime victim’s the court’s given past broad rejection of the photographs’ news value in we lump anyone interested in learning of Nancy Benoit’s decision to take nude photos into the group that Or it is simply one of those things find them both not newsworthy and unrelated to the underlying news story. Because greater right involuntary public figures have an even to privacy, that same editor would also ethical decision publish to the photographs, right people have no or that to bringclaims publica based upon interested in the story and, admittedly, as much when it quoted the headlines on the magazine’s cover. Are these people headlines were at whom the aimed the mysterious people decencywithout a sense of who do not their interest instead morbid and sensati What it does suggest is that the court went unnecessarilyWhat it does suggest far when it nophotos had the and that was not newsworthy story wrote that the news value whatsoever.to characterize The court leapt the imagesas those in which only persons without any sense of decency would be interested. Hustler, at least, believed tha news value of all stories, including those involving crime and including oriented, right-to-publicity matter, can be read far more broadly and could have a crushing effect on and 30555_cdt_9-2 Sheet No. 36 Side B 08/09/2011 09:04:54 B 08/09/2011 36 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 37 Side A 08/09/2011 09:04:54 PM PM
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76 their coach. M.G. v. coach. their 399
TORIES those involved. That’s all the S most newsworthy and most in and most most newsworthy is an underlying detective story. EWS And in a newsgathering case, a nation’s largest citiesin and one N 75 ETECTIVE D who had been molested by who had been molested RIME C ALUE OF V HE EPORTING R 8/1/2011 HILL IN C ELETE
D Two recent additionalTwo examplestelling are similarly Chicago from What unites all of these recent cases It seems as if it should be completely unnecessary to argue that A OT
N O M K detective stories are especially protected under the First Amendment. detective stories are especially protected under the First Amendment. Even Samuel Warren and Louis Brandeis, certainly no fans of news media, recognized public’s interest in a particular that at some point the news story outweighs privacy the sought by more true in a criminal matter, one directly affecting the public in its prosecution, one that violates the law put in place for the protection of the public, and one that is routinely of great public interest. federaltrial court judge decided that journalists could potentially be tort of intrusionliable for the privacy because they had used a telephoto persons recorded in a fenced backyard. The lens to record people included a reporter a man then believed fraternizing with to be involved in the disappearance of his one wife, stories of the biggest news of the wrote that a reasonablesummer. The court that the jury could find videotaping of the event was extreme and outrageous conduct—even though it took place on the man’s sister’s property, even though the man thehimself was present, and even though event took place outside. Time Warner, 89 Cal. App. 4th 623 (Cal. Ct. App. 2001). 2001). App. (Cal. Ct. 623 Cal. App. 4th Time Warner, 89 Ill. June 11, 2010). 75. *17-18 (N.D. at *5, 58996, LEXIS U.S. Dist. 2010 09 C 7749, Best v. Malec, No. years a few cases come from Illinois, given that that these surprising not it is 7, 2009). Perhaps 76. Ill. May (N.D. *12 at 38597, LEXIS U.S. Dist. 2009 08 C 6241, Webb v. CBS, No. news article after a privacy claim a valid had plaintiff a that court found before, an appeals words her murdered son and the of a photograph included Chicago in about crime statistics A 1996). (Ill. App. Ct. 249 Tribune, 675 N.E. 2d body. Green v. Chi. dead spoke over his she IllustratedSports in news reporting followed a few years later and criticized court California Little League included a article abused child players. The sexually who about adult coaches members some team photograph picturing those with accompanyingthose photographs or video. D 2011]T and troubling. of the Chicago is one iswhich crime heavily on a daily reported One federal judge basis. there, rejectedhowever, a motion to dismiss in a case involving whose a woman arrest was depictedon a reality television program; the woman’s infliction of emotionalintentional distress claim was based upon in part police described her as a “[p]retty way arrest and the the broadcast of her . driving a Jaguar.” . . little blond[e] girl And even though these detective tales of true crime have routinely been as those courts and protected by scholars the public interest, recently courts have, at least initially, ruled against the media. III. C Y 30555_cdt_9-2 Sheet No. 37 Side A 08/09/2011 09:04:54 A 08/09/2011 37 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 37 Side B 08/09/2011 09:04:54 M K C Y PM PM
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case, the answers . [Vol. 9 [Vol.. Benoit increasingly about skeptical such showing up and reporting at the it seems, strongly and repeatedly hit it seems, strongly into private matters begins—it is surely court wroteexplicitly jury that a could J. L ON TECH. HIGH & TELECOMM. Conradt and the decision in the Conradt 8/1/2011 ELETE D arrest if the media is tipped off by the police? arrest if the media is tipped off by the police? Would a court consider it advocacy or news reporting to cover an consider it advocacy or news a court Would And yet, given these decisions, imagine the news editor who must be included in a news editor’sImagine the questions that might If a line is to be drawn—and the Supreme has yet to tell us Court Before And yet today, it seems, courts are courts it seems, yet today, And Is it a violation of the ethics provision that suggests that reporters reporters suggests that that provision of the ethics Is it a violation may cause harm information “recognize that gathering and reporting or discomfort” if the news story suggests that a public official may have broken the law? to report curiosity lurid not pander to it be in good taste and Would a to communicate with attempts criminal details of a public official’s suggestion including the language, sexual graphic using young child that the prosecutor wished to “cock”? feel that child’s potentially be considered include what might the publication Should embarrassing photos taken many years before that a court could find story of a the underlying to connection value and a real lacked news crime? OT N O with uniformity if such a line is constitutionallywith uniformity if permissibleso, and, if where news ends and an invasion a prosecutor who, not in the case of on, using terms, graphic sexual a person thought to be a he presumably It violates13-year-old boy. the First Amendment and chills news reporting to hold media liable to be nice, especially for a failure in a situation involving of public official, especially in coverage the arrest of a a detective story. make the call about coverage of a particular crime that news story. If will be in lineeditor is to be sure that such coverage with existing law and will avoid any potential for liability, that coverage should not violate any of journalism’s highly subjective, ethereal, aspirational and ethics provisions. That editor also must consider the ways in which a lay judge or jury might interpret such ethics provisions. analysis: D 400 decide that NBC had overstepped its bounds and caused a would-be and caused its bounds NBC had overstepped decide that arrestee distress great emotional by arrestee’s home; the jury could find NBC liable for intentional infliction for intentional find NBC liable home; the jury could arrestee’s violated becauseemotional distress it of journalistic some ethereal ethics to be, in a word,provisions nice. news coverage. The coverage. news 30555_cdt_9-2 Sheet No. 37 Side B 08/09/2011 09:04:54 B 08/09/2011 37 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 38 Side A 08/09/2011 09:04:54 PM PM
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77 and the other decisions and the other decisions 401 TORIES S Conradt few financial resources to defend resources to few financial A concurring in judge the three- ETECTIVE tails. A California appeals court in D 79 ALUE OF V are not so clear are and it is easy the to use word HE
80 The court called it “Internet sensationalism” and 78
8/1/2011 at 898, 903. 898, 903. at at 864. at 864. at 863. at 863. ELETE D . Id. . Id. . Id. I am concerned that theseI am concerned decisions condemning media could A continued backlash against this type of publishing could lead to Finally, others Prosser and and as William noted, what person have It is not surprising that certain courts hold certain media responsible OT 80 79 78 N ONCLUSION O M K
early 2010, for example, held police responsible for publishing on the early 2010, for example, held police Internet death images of a youngan accident. woman killed in broadly, multiple arrestees could have and others a valid claim for intentional infliction of emotional distress should be their arrests theyreported, even if officials. are public There is absolutely no doubt that reporting matter on any such causes harm and discomfort to the arrestee. furthertighten even increase their definitionof and that courts could “news” to exclude certain crime de court called the spread of the images the Internet “a across malignant firestorm” and lamented that the images of appeared on thousands websites, spread around the world via e-mail, and led to the family’s great emotional harm. App. 2010). 77. Ct. (Cal. 863-64 856, 4th App. Cal. 181 Patrol, Highway Cal. of Catsouras v. Dep’t would be clear and the news editor and the be clear would with coveringforward move could the Today,story. answers the a newsroom analysis when considering “chilling” coverage, especially of have when news media in an age D 2011]T instead actions and against legal safer may decide it not to report the involvingnews story crime at all. is otherwise involvedwho is arrested or in some way in a crime news privacy?story would not want Reading additional cases that further quash the reporting of detective stories by traditional media. C “lurid gossip[,]” and its desire to protect surviving family members from such emotional trauma was clear. for certain irresponsible reporting, especially today when the Internet routinely pushes the envelope. What is surprising is that some recent courts have punished media in the context of crime reporting, a type of reporting routinely protected by courts under the First Amendment and judge decision wrote explicitly that surviving family members should have a right to their own privacy in any death images taken at an accident scene or at an autopsy. C Y 30555_cdt_9-2 Sheet No. 38 Side A 08/09/2011 09:04:54 A 08/09/2011 38 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 38 Side B 08/09/2011 09:04:54 M K
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Snyder v. Phelps . [Vol. 9 [Vol.. whether it deals with a matter of droves, proof that such reporting that such reporting droves, proof me of Warren and Brandeis. News News and Brandeis. Warren me of st and of value and concern to thest and of value and J. L ON TECH. HIGH & TELECOMM.
82 8/1/2011 at 1216 (internal citations omitted). omitted). citations 1216 (internal at ELETE D . Id. As the Supreme Court reiterated recently in recently Court reiterated As the Supreme Courts should recognize anew the value of detective stories and OT 82 N O public concern.’” “[s]peech deals with matters of public deals with matters “[s]peech fairly when it can ‘be concern matter of as relating to any considered or other concern political, social, or whento the community,’ it ‘is a subject of legitimate news interest; that is, a subject of general intere ‘inappropriate. [and t]he arguably character of or controversial . . public,’ a statement to the question is irrelevant 81. (2011). 131 S. Ct. 1207 Snyder v. Phelps, by commentators the ti at least since is in the public interest. D 402 publications crime on report in daily cities many the Unitedacross people read thoseStates, and stories in protect this type of journalistic coverage especially. 30555_cdt_9-2 Sheet No. 38 Side B 08/09/2011 09:04:54 B 08/09/2011 38 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 39 Side A 08/09/2011 09:04:54 PM PM
410 412 , Dec. . 408 . 2:54
: IRED , W AW EST L B
1 ETROMEDIA * LAIMS IN M
C . In the landmark case of 3 FFERS THE the rise of new media and EFAMATION ...... 404 ...... , June 17, 2008; Clive Thompson, Thompson, 17, 2008; Clive ., June HEMTOB O
D S , AG M the defamation context, most notably with notably with most context, defamation the ERTZ
EFAMATION ACH G , Aug. 2008, at 107. ERTZ Z D OSENBLOOM V G 403 , N.Y. R IRED
: OT OT ONCEPT IN , W ...... 410 N C
, IMES TO AT AND ...... T AKEN ECIDING L T D GE “I’M FAMOUS – on MySpace.” IGURE A ORK OT F ...... 416 AVID Y N Almost Famous Almost D The Microfame Game Microfame The
...... 403 EW OSENBLOOM ...... 418 OAD OAD IGITAL N UBLIC R P R D 8/8/2011 Objections to adoption of the Rosenbloom rule can be Objections to adoption of the Rosenbloom overcome. Changes in the have undermined Gertz’s media landscape “self-help” rationale. The digital age has significantly eroded the “public figure” ...... distinction. versus “private figure” What implications understanding does this have for the legal 2 HY HE HE ROM TANDARD FOR ELETE W C. T S F T THE A. B. D The concept of “public figurehood” has been explored most The T-shirt slogan may be tongue-in-cheek, an but it reflects OT N ONCLUSION O NTRODUCTION NTRODUCTION PUBLIC FIGUREHOOD IN THE DIGITAL AGE DIGITAL IN THE FIGUREHOOD PUBLIC M K I C I. of what it means to be a public figure? law. extensively in the context of defamation I 2007, at 84; Jason Tanz, 2007, at 84; Jason 1. I’m Famous on Myspace T-shirts, Zazzle.com, Zazzle.com, T-shirts, on Myspace I’m Famous David * Lat is the founder and managing editor of the legal at Central Criminology and Justice Professor in Criminal an Assistant Zachary Shemtob is website Above the Law. University. Connecticut State 1. Sorgatz, visited (last http://www.zazzle.com/im_famous_on_myspace_tshirt-235471316444495429 Rex May 23, 2011). 2. D II. here to libel and slander. our respect to privacy torts, but we confine analysis 3. of outside has implications certainly This III. Clive Thompson on The Age of Microcelebrity: Why Everyone’s a Little Brad Pitt a Little Everyone’s Why Microcelebrity: Age of The Clive Thompson on important truth: the digital age, marked by important truth: the digital age, marked social networking, is radically transforming what it means to be “famous.” C Y 30555_cdt_9-2 Sheet No. 39 Side A 08/09/2011 09:04:54 A 08/09/2011 39 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 39 Side B 08/09/2011 09:04:54 M K C Y PM PM
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ROM F
: , and their , provides a Statement from available at AW L , holds that the, holds that Gertz
7 Rosenbloom , the Supreme Court set . [Vol. 9 [Vol.. 8 , a new standard from whole a new standard from Gertz EFAMATION D public officials cannot recover
, Feb. 19, 2009, , the Supreme Court ruled that Court Supreme the public 4 is particularly well-suited for addressing , oing scrutiny, certainly in our schools of law and and of law our schools oing scrutiny, certainly in Gertz v. Robert Welch,Gertz v. Inc. ERTZ IMES ONCEPT IN case. In Part III, we explain why Justice case. In Part III, we explain why G T C decided several years before decided several years Rodney A. Smolla & W. Coleman Allen, Coleman Allen, Smolla & W. Rodney A. 6 ,
J. L ON TECH. HIGH & TELECOMM. —as interpreted applied by lower and as the courts Rosenbloom see also also see IGURE IMES TO F , 376 U.S. at 266. Rosenbloom T New York Times Co. v. Sullivan Gertz rule applies not just to public officials, but to “public officials, but not just to public rule applies , N.Y.
5 obsolete. We do not develop ORK UBLIC 8/8/2011 Y P Gertz EW ELETE HE D . Times New York N The question is not of who is or a public figure, far from being an As we shall argue, profoundthe mediawe have changesto landscapeAs In 1964, in In Part I, we review the relevant case law concerning who Before we turn to focus specifically on 8 OT N O superior framework for approaching superior framework claims indefamation the digital age. for the media, old inquiry, has very real implications abstract academic and new alike, and for public discourse. In the words of Justice Brennan, “the rules weadopt to determine an individual’s status as ‘public’ or ‘private’ powerfully the press decides affect the manner in which what to publish and, more importantly, to publish.” what not figures” as well. figures” as New York TimesNew York Iseman’s Lawyers Iseman’s basis for developingbasis for various tests for publicfigurehood—continues be to good law. rendered cloth, however, but Brennan’s plurality opinion believe that Justice in Rosenbloom v. Metromedia journalism, but also in the arena of public debate”). public debate”). arena of the in but also journalism, http://www.nytimes.com/2009/02/20/business/media/20lawyers.html# (arguing that the issue (arguing that the issue http://www.nytimes.com/2009/02/20/business/media/20lawyers.html# figure “deserves ong of who is a public forth important First Amendment limitations on the defamation torts of libel and slander. The Court held that 4. (1964). 282 U.S. 254, New York Times Co. v. Sullivan, 376 5. (1974). U.S. 323 Gertz v. Robert Welch, Inc., 418 6. from denial of certiorari); (1971). 403 U.S. 29 v. Metromedia Inc., Rosenbloom 7. dissenting J., (Brennan, (1985) 954 953, 474 U.S. v. Milkovich, Co. Journal Lorain New York Times Co. v. Sullivan Co. v. York Times New D 404 divergent approaches to public figurehood, a brief survey of the key This background will makeSupreme Court decisions is in order. clear why public figure status matters in the and how the concept has evolved case law over time. officials must establish “actual malice” “actual establish must officials A defamation. for when suing case in this area, second major constitutesPart II, a public figure. In we provide a more detailed discussion of the Brennan’s opinion in public figurehood in a world of instant and pervasive communication. I. T 30555_cdt_9-2 Sheet No. 39 Side B 08/09/2011 09:04:54 B 08/09/2011 39 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 40 Side A 08/09/2011 09:04:54 PM PM
In 11
2:54
14 ELATED ELATED R
&
10 LANDER S did not generate a
, 405 GE the Court extended the IBEL A Curtis 12 L ,
: IGITAL standard to plaintiffs who are D As Chief Justice Warren sensibly Times was a public official (L.B. was a Sullivan, 13 EFAMATION D of proof for each have no basis in law, of proof for each have no basis in IGUREHOOD THE IN F , but in a concurrence in result, which the was ACK ON S
UBLIC UBLIC , standard should apply to cases involving “public New York Times Curtis ACK , 376 U.S. at 256. S Curtis Publishing Co. v. Butts
rule to “public figures” as well as public officials. The rule to “public figures” as well as D. 8/8/2011
§ 1:2.2 (4th ed. 2010). (4th ed. 2010). 1:2.2 § at 163. at 163. at 279-80. at 164 (Warren, C.J., concurring in the result). result). concurring in the C.J., 164 (Warren, at 9 OBERT ELETE D . Id. . Id. . Id. . Times New York This was a profoundly importantThis was a profoundly development, as explained by permitting law Anglo-American of of centuries Against the backdrop this statement—protecting reputation, to protect of speech regulation on reputation— impact its matters irrespective of public speech about . It set apublic single standard for libel suits by . . was revolutionary. the nation. Implicitly, it in every court the press in officials against scrutiny. subjected all actions for defamation to constitutional The plaintiff in The constitutional guarantees require, we think, a federal rule that that rule a federal we think, require, guarantees The constitutional defamatory a damages for recovering from a public official prohibits that the unless he proves conduct relating to his official falsehood is, with knowledge with “actual malice”—that statement was made was false or it reckless disregard of whether with or was false that it not. Due to the fragmentation of the Court, 9 New York Times OT 14 13 11 N O ROBLEMS M K figures” as well as “public officials.” 10. R 10.
definitive rule on applicability of the New York Times case involved a private individual, a university athletic director and former in head football coach, who was accused a newspaper article of conspiring to fix a football issued a confusing raft of game. The Court separate opinions in controlling view on this issue, Chief Justice Warren expressed the that the the 1967 case of P damages for defamation absent proof absent for defamation damages the statement that was in question malice.” with “actual made a ringing opinion, In his endorsement of free wrote: Justice Brennan in a democracy, speech values D 2011]P 12. 130, 155 (1967). U.S. v. Butts, 388 Co. Curtis Publ’g
noted, “differentiation between ‘public figures’ and ‘public officials’ and adoption of separate standards Increasinglylogic, or First Amendment policy. in this country, the distinctions between governmental and private sectors are blurred.” one of three elected city commissioners in Montgomery, one ofAlabama). in Montgomery, three elected city commissioners Judge Robert D. Sack: Judge Robert D. Sack: C Y 30555_cdt_9-2 Sheet No. 40 Side A 08/09/2011 09:04:54 A 08/09/2011 40 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 40 Side B 08/09/2011 09:04:54 M K
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19 Court held that Court held standard when suing Gertz . [Vol. 9 [Vol.. does not apply to private does not The 16 New York Times New York Times New York approach finds some of its justification in approach finds some of its justification Court drew distinctions between different ttorney who representedin a party high-profile J. L ON TECH. HIGH & TELECOMM. Gertz Gertz —which remains the governing law in this area some some this area law in governing the remains —which
15 18 8/8/2011 Gertz . at 325. . at 325. . at 343. . at 343. . at 343-44. . at 343-44. . at 344. . at 344. But such would present the following difficulty: an approach ELETE 17 D . Id . Id . Id . Id ’s first rationale: The first remedy of any victim of defamation is self-help—using available is self-help—using of defamation victim The first remedy of any and thereby to minimize its correct the error contradict the lie or to opportunities usually enjoy figures public Public officials and reputation. adverse impact on hence and channels of effective communication access to the significantly greater false statements than private to counteract have a more realistic opportunity to vulnerable therefore more Private individuals are individuals normally enjoy. is correspondingly greater. and the state interest in protecting them injury, Justice Powell noted that “[t]heoretically,of course, the balance As set forth opinion in Justice Powell’s for the Court, In reaching the conclusion plaintiffs should not that private-figure [It] would lead to unpredictable results and uncertain expectations, results and uncertain expectations, to unpredictable lead [It] would courts duty to supervise the lower could render our and it of the competing ad hoc resolution Because an unmanageable. we must lay not feasible, case is particular interests at stake in each treat Such rules necessarily application. down broad rules of general involving differencescases as well as similarities. Thus it alike various justify adoption which is often true that not all of the considerations its under case decided of a given rule will obtain in each particular authority. OT 16 17 18 19 N O presented a publisher’s “the extent of constitutional privilege against a private defamation of liability for citizen.” the “actual malice” rule of an a persons (in this case, litigation). of the press and the individual’sbetween the needs claim to wrongfulcompensation for injury might on a case-by-case be struck basis.” 15. (1974). U.S. 334 Gertz v. Robert Welch, Inc., 418 In other words, the concerns of efficiency and ease of application. have to comply with the rigorous with what could be describedtypes of defamation plaintiffs. It began as Gertz not public officials. several came That ruling the Court when years later, decided D 406 thirty-five years later. thirty-five
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cases have , lower courts have , lower courts have Gertz Gertz 407 provide much of the GE , Carr v. Forbes, Inc., 259 F.3d F.3d Inc., 259 v. Forbes, Carr , and A Gertz
See, e.g. See, IGITAL 21 23 rubric applies only to suits rubric applies only D participation in the particular Court identified two ways of cribes a “limited purpose” public and Court declined to extend the tion cases decided after them,” with injury from defamatory falsehood defamatory falsehood injury from Times
Gertz 20 Gertz New York Times IGUREHOOD THE IN F the defamation.” UBLIC UBLIC New York Times “actual malice” standard, a court must consider “actual malice” standard, a court must the note 10, § 1:2.6 at 1-20. For example, based on at 1-20. 10, § 1:2.6 note note 10, § 1:5 at 1-33 to -34. at 1-33 10, § 1:5 note supra supra
8/8/2011 , , , 418 U.S. at 351. , 418 , 418 U.S. at 352. , 418 standard to defamation suits brought by privateindividuals. . at 345. A somewhat crisper formulation was offered by the Supreme Court in in Supreme Court the offered by was crisper formulation somewhat A 345. . at ACK ACK In determining whether a private individual should be subject to ELETE
22 D . Gertz . Id . Gertz 24 Taken together, In some instances an individual may achieve such pervasive fame or pervasive such may achieve instances an individual In some and in all for all purposes figure a public notoriety that he becomes or himself voluntarily injects contexts. More commonly, an individual a becomes and thereby controversy particular public a is drawn into a limited range of issues. for public figure [T]he communications media are entitled [T]he communications the assumption to act on voluntarily exposed have figures officials and public that public of to increased risk themselves more . [P]rivateonly not individuals are to a with respect justified is No such assumption them. concerning . . private individual. they are figures; officials and public injury than public to vulnerable of recovery. also more deserving Having the concluded that New York Times OT 23 20 21 N O M K 22. S 22. 24. S 24. framework against which defamation claims are evaluated today. As noted by Judge Sack, “[t]he affected the vast majorityaffected defama of state and lower federal courts filling instate and lower federal courts filling many of the gaps left by these cases.
figure. The first designation describes a “pervasive” or “all-purpose” public figure, and the second designation des It then offered a second justification: justification: a second offered It then In light of these differences, the D 2011]P Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 164 (1979): “[P]ublic figures are less figures are “[P]ublic 164 (1979): 157, Inc., 443 U.S. Digest Ass’n, Wolston v. Reader’s have officials, public because public figures, than private persons like protection deserving of ‘voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.’” York Times 273, 280 (4th Cir. 2001) (utilizing a five-factor test). 2001) (utilizing Cir. 273, 280 (4th developed tests for limited-purpose public figure status. developed tests for limited-purpose public figure status. controversy giving rise to “nature and extent of an individual’s the brought by public figures,the brought by public attaining figure status: public C Y 30555_cdt_9-2 Sheet No. 41 Side A 08/09/2011 09:04:54 A 08/09/2011 41 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 41 Side B 08/09/2011 09:04:54 M K
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Rosenbloom But because Rosenbloom v. Rosenbloom 27 New York Times’ New York standard should Rosenbloom was fragmented, was fragmented, ETROMEDIA involving matters of M
. . [Vol. 9 [Vol.. . Rosenbloom , decided in 1964, and , decided red in a news broadcast byred in a news broadcast a by extending constitutional —in which the Court tackled Because it does not draw
Gertz 28 bate on public issues, which is New York Times Gertz applies to defamation suits brought OSENBLOOM V R
: was joined by only two other justices, his as follows: “whether the as follows: , the Court in New York Times New York AKEN J. L ON TECH. HIGH & TELECOMM. T plurality reached its conclusion through the cussion and communication New York Times OT Rosenbloom Rosenbloom
N In his plurality opinion, In his plurality Justice Brennan described the 26 25 OAD OAD Curtis Publishing 8/8/2011 Rosenbloom R at 31-32. . at 52. . at 52. . at 43-44. 102 (1940)). 88, Thornhill v. Alabama, 310 U.S. . at 41 (citing ELETE HE D . Id . Id . Id . Id. Justice Brennan articulated the following rule in As in 1. Free speech is critical society, to a self-governing and it reaches 1. In the decade between The OT 27 28 29 26 N O public or general to whether the persons concern, without regard involved are famous or anonymous.” protection to all dis honor the commitment to robust de honor the commitment to robust embodied in the First Amendment, with no opinion garnering a majoritywith no opinion of the justices. In a plurality opinion, representing of three the views Justice justices, Brennan rejected the distinction public between and private in the defamation figures the viewcontext, expressing that the of events of “public or general concern.” apply to all reports
“all issues about which information is “all issues about which information to enable the needed or appropriate members of exigencies society to cope with the of their period.”
issue presented in knowing-or-reckless-falsity libel action in a state civil standard applies but by a private ‘public official’ or a ‘public figure’ brought not by a individual falsehood utte for a defamatory radio station about individual’sthe involvement in an event of public or general interest.” 25. (1971). 403 U.S. 29 II. T II. D 408 Justice Brennan in opinion didrepresent a definitive not pronouncement by the Court on whether the rule of by private individuals. As a result, essentially the but with an opinion that spoke for a majority same issue, of the Court—essentially supplanted Justice Brennan’s opinion as the controlling framework. following reasoning: distinctions between types of plaintiffs, this rule is clearer and easier to distinctions between types of plaintiffs, apply than what would later replace it in decided in 1974,decided in the case of Court decided the Supreme Inc.Metromedia, 30555_cdt_9-2 Sheet No. 41 Side B 08/09/2011 09:04:54 B 08/09/2011 41 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 42 Side A 08/09/2011 09:04:54 PM PM
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Voluntarily
409 GE A
33 IGITAL
D 34 of the self to others in varying
31
30 IGUREHOOD THE IN
F 32 ous or anonymous.” UBLIC UBLIC 8/8/2011 . at 41-42. . at 41-42. . at 42. . at 42. . at 43. . at 43. . at 43-44. . at 43-44. . at 45-46. . at 45-46. ELETE D . Id . Id . Id . Id . Id or not, we are all ‘public’ men to some degree. Conversely, some some degree. Conversely, men to some or not, we are all ‘public’ the area outside men fall aspects of the lives of even the most public Justice Brennan then proceeded of the to refute the arguments We have recognized that ‘(e)xposure that ‘(e)xposure We have recognized community.’ of life in a civilized degrees is a concomitant Drawing a distinction between ‘public’ and ‘private’ figures makes no makes no ‘public’ and ‘private’ figures between Drawing a distinction York New The guarantees. Amendment First of the sense in terms of a public officialTimes standard was applied to libel or public encourage to function effect to the Amendment’s figure to give any less the public official has ventilation of public issues, not because private life. in individual reputation than an his interest in protecting because less protection that public figures need argument the While true may be counter criticism to media attention they can command case where the rare even then it is people, prominent for some very the denial overtakes the original charge. Accordingly, that Justice Brennan concluded constitutional 2. The distinction The between “public” “private” and is 2. suddenly it cannot interest, or general public subject of is a If a matter is involved, or a private individual because become less so merely not ‘voluntarily’ choose to sense the individual did because in some the event; in the is interest The public’s primary involved. become and the content, of is on the conduct the participant public focus prior conduct, not the participant’s the of effect, and significance anonymity or notoriety. 3. Freedom of the press isn’t just aboutof the press isn’t Freedom political speech. “Comments 3. 4. It makes little sense for free little sense for It makes speech guarantees on the to turn 4. OT 30 31 32 33 34 N O M K in other cases reiterate this judgment thatcases reiterate this in other the First Amendment extends to myriad matters of public interest.”
He then made a broader argument about the elusive nature of “privacy”: He then made a broader argument D 2011]P
petitioner. He rejected the distinction between “public” and “private” figures in the First Amendment context:
protection communication applies “to all discussion and involving matters of public or general concern, regard without the to whether persons involved are fam eroding/increasingly blurred. fame or obscurity of the individuals involved: C Y 30555_cdt_9-2 Sheet No. 42 Side A 08/09/2011 09:04:54 A 08/09/2011 42 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 42 Side B 08/09/2011 09:04:54 M K
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Rosenbloom EST B not only obsolete
LAIMS IN THE 35 C Gertz . [Vol. 9 [Vol.. : (1) changes in the media on that ordinary citizens dramatically. Thanks to the FFERS THE is correspondingly greater.” O
,
37 , lower courts determining public EFAMATION ERTZ may in have made sense particular a D G ’s self-help rationale, (2) the digital and Gertz OT OT Gertz N Gertz
, was decided in 1974, false charges could only was decided in 1974, false charges ECIDING J. L ON TECH. HIGH & TELECOMM. in protecting them in protecting them D Gertz . GE A Court figures argued that public have better access to the OSENBLOOM 8/8/2011 R , 418 U.S. at 344. , 418 help” rationale. Gertz ., Hatfill v. New York Times Co., 532 F.3d 312, 319 (4th Cir. 2008). Cir. 2008). 319 (4th 312, 532 F.3d York Times Co., ., Hatfill v. New . at 47-48 (internal citations omitted). omitted). citations (internal . at 47-48 HY IGITAL ELETE TANDARD FOR D . Id . Gertz . E.g S D A. Changes in the media landscape have undermined Gertz’s “self- This analysis reflects a very different—and outdated—media of matters of public or general concern. Thus, the idea that certain certain idea that Thus, the concern. of of matters or general public to public lives entire their exposed have voluntarily figures ‘public’ individuals while private theirs carefully kept inspection, have at best, a legal fiction. from public view is, shrouded Widespread use of the InternetWidespread use of has rendered The OT 35 36 37 N O Based on this language fromBased on thislanguage but legally incoherent for two primarybut legally incoherent reasons landscape have undermined landscape have undermined channels of communication, and therefore a better ability to counteract vulnerable. more to injury, . . false statements: “Private individuals are and the state interest figure status would consider such factors as the individual’sfigure status would consider such to “access channels of effective communication.”
As we will explore in the next section, this argument has only grown argument has this explore inAs we will section, the next instronger the intervening years. III. W D 410
environment. When generally could not methods of tap into. In 2011, however, communication have expanded and changed be countered through access to a printing press, radio station, or be countered through access to television network—modes of communicati phenomenon of blogging and the rise of social networks like Twitter and Facebook, ordinary citizens historically unprecedented have access to effective communication channels. One can refute false charges not just through newspapers, radio, or television, but through a proliferation of online outlets as well. Aggrieved subjects of media coverage no longer age has blurred, if not eliminated, the entire public/private distinction if not eliminated, the entire public/private age has blurred, Whilethis case relied upon. social and historical context, Justice Brennan’s opinion in holds far greater relevance today. 30555_cdt_9-2 Sheet No. 42 Side B 08/09/2011 09:04:54 B 08/09/2011 42 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 43 Side A 08/09/2011 09:04:54 PM PM also also
Yet see 2:54 41
411 GE A be relatively new. But the importance the importance new. But be relatively d education are theavailable weapons IGITAL . For example, Justice Harlan, . For example, Justice D m of official conduct does not leave the not does conduct m of official of letters instead, the editor; to , and set it forth as a minor , and set it forth Gertz free speech . . . .’” (quoting Wood v. Georgia, set no absolute requirement that an Gertz privilege one’s to speak in self-defense or to defend ’s rationale. First, perfect equality is not common law. Foretich v. Capital Cities/ABC, Inc., 37 Foretich v. common law. Gertz . IGUREHOOD THE IN F Gertz (Indeed, if false rumors started (Indeed, online, refuting Gertz UBLIC UBLIC even prior to 38 , (June 29, 2009, 3:24 PM), 3:24 2009, 29, (June , New York Times Co. v. Sullivan, 376 U.S. 254, 304 (1964). (1964). 304 U.S. 254, v. Sullivan, 376 New York Times Co. Average Twitter User Has 126 Followers, and Only 20% of Users Go via Twitter User Has 126 Followers, and Only 20% Average see also see
UARDIAN 39
8/8/2011 42 while the average Twitter only 126 followers. user has http://twitter.com/Aplusk. http://twitter.com/Aplusk. 40 ELETE D . See , G Because the marketplace of ideas is so robust in the digital age, in the digital of ideas is so robust the marketplace Because [D]ifficulty in reaching all those who may have read the alleged read the have may those who all in reaching [D]ifficulty was that [the plaintiff] a finding falsehood surely ought not preclude under a public figure individual be able fully to counter falsehoods through self-help in through self-help falsehoods able fully to counter be individual the availability of the self-help order to be a public figure. We viewed remedy as a relative matter in consideration in determining whether an individual is a public is individual whether an in determining consideration figure. Of course, even in digital age, famous the still have celebrities OT 40 N O M K http://www.guardian.co.uk/technology/blog/2009/jun/29/twitter-users-average-api-traffic. http://www.guardian.co.uk/technology/blog/2009/jun/29/twitter-users-average-api-traffic. South the Arizona and (“Of course, n.2 (4th Cir. 2001) Carr v. Forbes, 259 F.3d 273, 282 42. (Marshall, J., dissenting); (1976) 448, 486 U.S. 424 Time, Inc. v. Firestone, magazine. However, a court of Forbes readership do not have the international Carolina media a media outlet with the to had access has ever plaintiff not ask whether a defamation does (Goldberg, J., concurring in the result) (“The conclusion that the Constitution affords the that the the result) (“The conclusion (Goldberg, J., concurring in F.3d 1541, 1559 (4th Cir. 1994). Cir. 1994). 1559 (4th F.3d 1541, dissenting in part); part and in J., concurring (Harlan, 39. 407 (1967) 374, 385 U.S. Time, Inc. v. Hill, reputation,” traces its roots back to the back to roots traces its reputation,” as the of the “privilege of reply, also known 38. ability to refute allegations may This enhanced need a newspaper to print retractions print retractions to a newspaper need their and tell can go out subjects these blog or on a of the story side own social networking site. D 2011]P this still fails to legitimate whose jurisprudence was frequently less whose jurisprudence press-friendly of some than that of his colleagues, acknowledged “falsehood that is more easily tolerated creates the where public attention strong likelihood of a competition among ideas.” them online may be the most effective response.) greater freedom can be granted to the media, both old and new. The constitutional changes relevance of such in the media environment was recognized by justices citizen and the press an absolute privilege for criticiscitizen and the public official without defenses against unsubstantiated opinions or deliberate misstatements. misstatements. deliberate or opinions unsubstantiated against defenses without public official ‘Under of government, our system counterargument an to expose these matters, not abridgment . . . of (1962))). 389 370 U.S. 375, 41. Charles Arther, Charles 41. Website greater access to communication channels than ordinary citizens. For Kutcher has moreexample, Ashton six million followers on than Twitter, required. In the words of Justice Marshall: C Y 30555_cdt_9-2 Sheet No. 43 Side A 08/09/2011 09:04:54 A 08/09/2011 43 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 43 Side B 08/09/2011 09:04:54 M K
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available at available (July 22, 2010, 7:38 22, 2010, (July an offer to return ATTERS . [Vol. 9 [Vol.. M sharp distinction between of news these days, inof news these which EDIA the past. Sherrod had a muchthe past. Sherrod M mpaign. This not only led to an ted in a racially discriminatory record in the digital age was easy: rack Obama and before someonemajor does have a who (Feb. 15, 2011, 11:15 AM), AM), 11:15 15, 2011, (Feb. Former USDA Employee Sues Conservative Blogger Over Video Video Blogger Over Conservative Sues Employee USDA Former J. L ON TECH. HIGH & TELECOMM. OLITICS P Court, above all else, drew a
Timeline of Breitbart’s Sherrod Smear, Smear, Sherrod Breitbart’s of Timeline
Ashley Ashley Hayes, 8/8/2011 “private figure” distinction. Gertz See See ELETE D http://mediamatters.org/research/201007220004. Sherrod has sued Breitbart for http://mediamatters.org/research/201007220004. , CNN B. age The digital has significantly eroded the “public figure” versus The case of Sherrod, Shirley former official a at the U.S. The Second, evenSecond, aggrieved if an might party not initially a large have
OT N O public figures and private voluntarily figures. Public figures “have exposed themselves to increased risk of injury from defamatory falsehood concerning them,” private figures. Moreover, unlike “[p]rivate individuals are not only more vulnerable to injury than public officials and public bully pulpit might be as simplebully pulpit as sending an e-mail or “tweeting at” that individual. And the “crowdsourced” nature ofthousands citizen-journalists get involved in exploring all sides of an to ensureissue, also helps that multiple viewpoints are represented, to the most controversial issuesespecially with respect of the day. Department of Agriculture, disparities illustrates how in access to media less today than inchannels matter much smaller audience activist than conservative Andrew Breitbart, publisher of the website who BigGovernment.com, of an edited posted portions that Sherrodvideo suggesting had ac manner. controversy, In the ensuing was forced Sherrod to resign from her government correcting the job. Yet audience, reachingaudience, speakers prominent followings sizable who do have is difficult.no longer Thanks in communications to advances technology, getting side of the story one’s once the NAACP released the full video, Media Matters was quickly able to deconstruct the alleged smear ca apology to Sherrod from President Ba to the Department of Agriculture from Secretary Tom Vilsack, but widespread sympathy for Sherrod’s plight against Breitbart. and outrage defamation. Posting http://www.cnn.com/2011/POLITICS/02/14/sherrod.lawsuit. In her complaint she notably http://www.cnn.com/2011/POLITICS/02/14/sherrod.lawsuit. No. Sherrod v. Breitbart, at 18, malice.” Complaint acted with “actual claims Breitbart (Super. Ct. D.C. Feb. 11, 2011), 0001157-11 http://static1.firedoglake.com/28/files/2011/02/20110211-Sherrod-Complaint-File- Stamp.pdf. same size readership of the allegedly defamatory publication; such an inquiry would effectively such publication; readership of the allegedly defamatory same size is Our inquiry widely read publicationsprohibit ever commenting on local controversies. from access to channels had plaintiff defamation the rather whether the evidence demonstrates that Carr clearly had allegedly defamatory statements. of effective communication to respond to the such access.”). Shirley Sherrod of the very thorough timeline a has prepared controversy. Media Matters 43. D 412 AM), 30555_cdt_9-2 Sheet No. 43 Side B 08/09/2011 09:04:54 B 08/09/2011 43 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 44 Side A 08/09/2011 09:04:54
S I PM PM
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USINESS USINESS B Waldbaum v. Chesler is Rosenbloom 48 Aug. 7, 2006, at at Aug. 7, 2006,
See See OORE , public spotlight, or public spotlight, M
, July 15, 2008 (noting , July 15, 2008 (noting approach fails to approach fails to
47 ORKER ger the exclusive province UTURE OF OF UTURE & Y F IRED 413 a very different view: different a very enomenon of being extremelyenomenon of Gertz GE EW A , W N teps into the teps into HE HY THE may bring close scrutiny that can lead scrutiny that close bring may IGITAL WAINE WAINE , T S D W
king, if you really want it.”); Jason Tanz, king, if you really want it.”); Jason Tanz, : d specialized audiences and is proudly minor minor proudly is and audiences specialized d
for it sacrifices in terms what of , at renown is no lon AIL T her advocate of new-media journalism, has has journalism, new-media of her advocate Instead of a world with a few huge Instead of a world t. When someone s Amateur Hour 46 RAVATH ONG C L IGUREHOOD THE IN F HE HE d the Secrets of Self-Promotion the Secrets of d T note 2 (“Microcelebrity is the ph
UBLIC UBLIC national television). Fame has its privileges. privileges. Fame has its national television). , —is distributed along a spectrum, not according to—is distributed along 44 (2006). (2006). supra note 2 (“The point is th ORE Nicholas Lemann, framework mayoffered in have once clarity ease of or One way of thinking about this is through Chris One way of thinking M NDERSON supra supra 45 A 8/8/2011 see also see Gertz Thompson, ; ESS OF OF ESS HRIS HRIS L Sorgatz, Sorgatz, ELETE
D . Id. . See . Evan R. Chesler, Evan R. Chesler, . Second, and on a closely relatedSecond, and on a note, the A good example of a niche celebrity, related to the blog that one of Justice Brennan’s words ring even more in the digital true First, age. OT 47 45 48 N O ELLING M K of a select few. Nano-celebrity is there for the ta of a select few. is there for Nano-celebrity Internet Famous: Julia Allison an celebrities and millions of live in a world with “nobodies,” we now a celebrities“long tail” of minor (e.g., reality TV stars, prominent bloggers). As Anderson stars. As “not all celebrities are Hollywood notes, into a million tinyour culture fragments microcultures,are we experiencing a corresponding rise of microcelebrities.” well knownnot – a thousandsmall millions people, or maybe only to group but to a a few dozen.”);
when he remains there once cast into it, he must take the bad with the good.”). the good.”). the bad with cast into it, he must take there once when he remains Anderson’s “long tail” rubric. plurality opinion, by Justice Brennan, expressed expressed Justice Brennan, by opinion, plurality “Voluntarily we are all ‘public’ or not, to some degree.” men what the no longeradministration makes up Inaccuracy. its associated with “microcelebrity,” fame—along the age of benefits and burdens S chance to be humiliated on the 44. (i.e., for reality shows try out by the thousands There’s a reason why people figures; theyfigures; are deserving more also of recovery.” The D 2011]P power, often brings Cir. 1980) (“Fame 1294-95 (D.C. 627 F.2d 1287, Fairchild Publ’ns, also It self-gratification. and money, respect, adulation, to adverse as well as favorable commen 44 (“Most citizen journalism reaches very small an reaches very small journalism citizen 44 (“Most anot David Weinberger, concerns. in its Web, everyone ‘On the maxim: Warhol’s Andy a witty play on situation with summarized the fifteen people.’”). to will be famous a dichotomy. that blogger Julia Allison “may not be famous by the traditional definition,” but that “to a but that definition,” traditional not be famous by the “may blogger Julia Allison that a bona online – she is and an devoted niche of fans – even more devoted niche of detractors C fide celebrity”). 46. take into account the rise of “niche celebrity.” Thanks to the rise of highly targeted blogs, interest groups within social networks, even or social networking sites for specific interest groups, becoming a “celebrity” within a particular area of interest, or geographical trade or profession, location is startlingly easy. us founded, Above the Law (www.abovethelaw.com), might be Evan of Cravath,Chesler. Chesler is the presiding partner Swaine Moore, & prestigious law firms. one of the nation’s most powerful and C Y 30555_cdt_9-2 Sheet No. 44 Side A 08/09/2011 09:04:54 A 08/09/2011 44 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 44 Side B 08/09/2011 09:04:54 M K
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50 ORBES obligation or , F t as strong in the t as strong in the it is in the context of an ivate individuals. The billable hour as the dominant billable hour as the dominant of public concern. Chesler has concern. Chesler public of . [Vol. 9 [Vol.. about local issues as it does to about to cast him as a limited- him as to cast Lorain Journal Co. v. Milkovich, supporting the struggle for racial Kill the Billable Hour Kill the Billable New York Times nts often involved plaintiffs d by giant news outlets with high, as at least one court has Chesler’s decisions in leading Chesler’s see also see 49 t Amendment is every bi t Amendment is at 964-65 (arguing that the Court’s commitment the Court’s commitment that (arguing 964-65 at id. ., Evan Chesler, fact is constitutionallyirrelevant.” protection for pr cident at school as cident a local high iders this to be an issue to iders this E.g might be the use of the might established in the Firs in the established J. L ON TECH. HIGH & TELECOMM. e Nation’s largest newspapers . much to debate in the local media much to media over national issues,” and that “[t]his Court’s Court’s and that “[t]his issues,” media over national , “[t]he subject matter may have been only of local may have been only of local , “[t]he subject matter
Gertz 8/8/2011 ELETE D Niche celebrity might also be relevant in terms of evaluating the Dissemination to a wide audience creates special problems. For but in a small community, known well may be example, an individual covers a larger the publication area. In be such a situation, it might But Evan CheslerBut Evan is, within the legal the world profession and of prior case law thatThere are hints in fame within a community or a OT N O freedom in the South”). magazine. Damages in could be such cases noted: advertisement in one of th context of a local paper’s report of an in paper’s report of context of a local preserve the precious freedoms mounted a vigorous critique of the billable hour, speaking out and writing against it in widely against it in and writing out hour, speaking billable the critique of a vigorous mounted read, mainstream-media publications. http://www.cravath.com/echesler (last visited Apr. 1, 2011). 2011). Apr. 1, http://www.cravath.com/echesler (last visited cons lawyers, if one billing method for 49. A possible exception this to not a public official, and he is not, he is and public official, not a traditionalby the a general- analysis, publicpurpose It figure. even would be difficult D 414 publicpurpose generally not trying since he is figure, the to influence resolutionissue of public concern. of any Cravath are just decisionsCravath doing his job—like in the course of he makes inthe attorney 12, 2009, at 26. at 26. 12, 2009, 50. 383 U.S. 75, 83 (1966); v. Baer Rosenblatt debate in the national 474 U.S. 953, 963 (1985) (Brennan, J., dissenting from denial of certiorari) (arguing that a that (arguing of certiorari) denial from dissenting J., (Brennan, (1985) 963 953, 474 U.S. highschool wrestling coach was a limited purposehis because public figure of involvement in to as important was] local community [that of the residents of concern to “a public controversy them as larger eventsNation”); are to the to free speech “applies as damage inflicted by falsehoods, a consideration identified by the Court in establishing greater covere with local or limited fame who were Supreme Court’s major defamation precede national or international reach,the like large law firms, a definitelarge law firms, a niche celebrity, a figure ofinterest in this great particular The legal profession is field. How should he be covered? and prominent, wealthy, powerful, within it.and he is a leading figure Why shouldn’t he have to demonstrate malice” “actual to with respect reporting his that covers leadership of Cravath? sector can be constitutionally significant. As stated Court in by the Rosenblatt v. Baer interest, but at least here, where publication was addressed primarily to the interested community, that 30555_cdt_9-2 Sheet No. 44 Side B 08/09/2011 09:04:54 B 08/09/2011 44 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 45 Side A 08/09/2011 09:04:54 PM PM
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or another , which takes a , which takes a 415 GE A New York Times IGITAL D reader might come across a , “[v]oluntarily or not, we are all engines already places the user in debatable importance—entitled to dcast it to a much wider range of Justice Brennan wrote in the earlier Time, Inc. v. Hill
Rosenbloom IGUREHOOD THE IN F 52 UBLIC UBLIC
51 8/8/2011 ELETE D Finally, privacy technology has eroded in so many different ways. As One might argue that providing nicheOne might argue that providing publishers with broad The guarantees for speech and press are not the preserve of political the preserve of speech and press are not The guarantees for essential as those are to upon public affairs, comment expression or or pick up any newspaper need only One healthy government. matter which the vast range of published comprehend magazine to and public view, both private citizens exposes persons to public officials. . . . in this historic function fulfill its would it if Freedom of discussion, is needed or information nation, must embrace all issues about which with the to cope of society members enable the appropriate to found in the be can suggestion No period. their exigencies of for speech and the the freedom there guaranteed that Constitution the of importance and to the timeliness ratio inverse press bears an ideas seeking expression. appropriate to treat the plaintiff as a public figure for the segment of the segment figure for public as a plaintiff treat the to appropriate for individual a private and as known well is he which to the audience in may be relevant audience any event, the defamation’s the rest. In not does audience may be less if the damages, for injury assessing in him with to interact have no occasion victim and will the know of the future. OT N O M K 51. 1980). Cir. n.22 (D.C. 1295 F.2d 1287, 627 Publ’ns, Waldbaum v. Fairchild 52. omitted). citations (internal (1967) 388 385 U.S. 374, Time, Inc. v. Hill, full First Amendment protection?full First Amendment can be found in the The response decisionSupreme Court’s in commendably broad view of free speech: Of course, this gives rise to another question: Why aregives rise to another question: Of course, this niche might cover matters that are importantpublishers—who to just a limited or evengroup of people, matters of D 2011]P defamatory falsehood about someone the reader had never heard about before and had no prior interest in, a search engine isn’t putting in front a of the user information that the user wasn’t already looking for in targeted way. Justice Brennan declared in ‘public’ men to some degree.” Or as general-interest newspaper, where a constitutional protection fails to consider Google and other search engines, which effectively take what might been a niche have publication, read by a limited audience, and broa readers. But using one of these search of the “niche” territory. Unlike the front page C Y 30555_cdt_9-2 Sheet No. 45 Side A 08/09/2011 09:04:54 A 08/09/2011 45 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 45 Side B 08/09/2011 09:04:54 M K
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is a is that is that 2:54
Rosenbloom There is no 54 Rosenbloom . Rosenbloom YouTube, where said where said YouTube, , Alaska, and Indiana, . [Vol. 9 [Vol.. don’t leave home often, don’t leave home Rosenbloom , and defamatory speech at results in a more favorable approach, New and two others, ndard even individuals, to private simply reflects the law evolving to ut certainly an important issue for courts that for courts issue an important ut certainly aming video and aming Rosenbloom ious states suggest that rule has proven unworkable or resulted in rule has proven unworkable or resulted Rosenbloom
st three states, Colorado 53 : J. L ON TECH. HIGH & TELECOMM. Rosenbloom’s Ghost: How a Discredited Decision Lives on in Libel on in Libel Lives Decision Rosenbloom’s Ghost: How a Discredited Rosenbloom . 427, 436-38 (2004). Mitchell’s main criticism of criticism main Mitchell’s (2004). 436-38 427, . EV R
to keep in mind. L. 8/8/2011 . DAHO DAHO ELETE Time, Inc. v. Hill Time, D . Id C. Objections to adoption of the Rosenbloom rule can be overcome. Rosenbloom First, the experiences of var The most obvious counterargumentthat adopting is the Of course, one could imagine a regime in which people who went imagine a regime in which people Of course, one could Second, to the extent that Exposure of the self to others in varying degrees is a concomitant of is a concomitant in varying degrees of the self to others Exposure a civilized community.in life exposure is an essential The risk of this freedom value on primary which places a in a society life incident of and of press. of speech In this day and age—of where our private blogs, misadventures can OT 53 , 40 I , 40 N O workable standard. At lea Jersey and New York, have standards similar to have essentially adopted the rule and applying the “actual malice” sta as long as the concern, would create subject matter is of public or general speakers a regime too favorable to publishers, the expense private of citizens. There are several responses to this position. regime for publishers and speakers, it misadventures can be seenand heard by total strangers; of Facebook, post pictures ofwhere “friends” can us, against our will (maybe we can “de-tag,” but we can’t remove); at the airport— of full-body scanners Justice Brennan’s words ring more true than ever, for better worse. or We are more “public” more interconnected than ever. and to protectout of their way their privacy—e.g., Howard Hughes-like hermits, and Twitter, who eschew Facebook underetc.—might be treated differently the law, and given more favorable treatment as defamation or privacy-tort the plaintiffs. But default rule—for average people, who take no extraordinary measures to treat them as fairly public individuals. protect her privacy—would be written about at length; of stre be written about at deciding what constitutes a matter of “public concern” can be difficult—a subject that lies of “public concern” subject can be difficult—a deciding what constitutes a matter b current discussion, of the scope the beyond follow excessive defamatory speech in these jurisdictions. indication that the
case of D 416 Law 54. James C. Mitchell, 30555_cdt_9-2 Sheet No. 45 Side B 08/09/2011 09:04:54 B 08/09/2011 45 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 46 Side A 08/09/2011 09:04:54 PM PM
2:54 Batzel
Zeran America v. ple, Justices Black
see also 57 417 GE A IGITAL rule is not the most extreme D ical discourse, unique opportunities unique opportunities ical discourse, As the Ninth stated Circuit in 55 Rosenbloom IGUREHOOD THE IN
F : 56 ronger viewpoints. For exam UBLIC UBLIC w and burgeoning Internet medium.”). w and Zeran 8/8/2011 , 129 F.3d at 331 (citations omitted). F.3d , 129 , 129 F.3d 327, 330-31 (4th Cir. 1997) (“The purpose of this statutory immunity immunity (“The purpose of this statutory F.3d 327, 330-31 (4th Cir. 1997) , 129 . , construing Section 230: , construing ELETE D . Zeran Finally, adoption of the Interactive computer services have millions of users. The amount of amount users. The of millions have services computer Interactive is services computer interactive via communicated information in an area of such liability therefore staggering. The specter of tort have an effect. would prolific speech obvious chilling for cultural development, and myriad avenues for intellectual activity. activity. myriad avenues for intellectual development, and for cultural have computer services interactive and other (4) The Internet minimum of a with of all Americans, benefit the flourished, to regulation. government Congress made this legislative choice [of enacting Section 230] for for 230] Section enacting [of this legislative choice Congress made wanted to encourage the reasons. First, Congress two primary of free speech on the development unfettered and unregulated Section of e-commerce. the development Internet, and to promote that: highlights 230(a), “Findings,” offer a and other interactive computer services (3) The Internet polit of diversity true for a forum OT 57 N O M K freedom of speech in the ne is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to the threat that tort-based recognized to discern. Congress is not difficult Online, Inc Online, 55. (1998). § 230 47 U.S.C. 2003); 56. Cir. 1027 (9th 1018, 333 F.3d Batzel v. Smith, Accordingly, by enacting Section 230, Congress replaced the traditional Accordingly, by enacting Section 230, tort law doctrine of republication liability framework with a new for the online world. It’s a compromise to have that seems worked fairly well; Section 230 is alive and well. almost 15 years after its enactment, Applying old rules to new media does not make sense as a policy matter. reaping the fullIt would prevent society from rewards of new inhibitingcommunications technologies by speech. As the Fourth Circuit explained in accommodate in advances communications technology.speech Free and strong receive concerns Amendment First online in the protection legal of the to Section 230 notably thanks most context—perhaps of operators which insulates Act of 1996, Decency Communications defamatoryheld liable for being computerinteractive from services content providedby third parties. pro-media/pro-free-speech positioncould take. Justices one writing decades ago articulated st D 2011]P v. Smith C Y 30555_cdt_9-2 Sheet No. 46 Side A 08/09/2011 09:04:54 A 08/09/2011 46 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 46 Side B 08/09/2011 09:04:54 M K
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(June 8, 8, (June ish in the
Time, Inc. OB standard standard 58 M BOVE THE BOVE New York Times for responding , A EDIA EDIA M . [Vol. 9 [Vol.. titutional right to publ BSERVER New York Times York New O ORK Y , there that are some indications EW rm rounds up and produces into a up and produces into a rounds rm N tutionally—despite it is a fact that the e Montgomery agencies and officials”); officials”); and agencies e Montgomery HE
note 45. note 45. , T from passing any libel law.”). law.”). any libel from passing 61
60 at 401 (Douglas, J., concurring); Gertz v. Robert Gertz v. Robert Welch, at 401 (Douglas, J., concurring); aggrieved outlets parties more supra id. J. L ON TECH. HIGH & TELECOMM. The End of Libel Brokeback Lawfirm: Gera Grinberg — Who Is This Guy? Is This — Who Grinberg Lawfirm: Gera Brokeback
, New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (Black, J., (Black, J., (1964) 293 U.S. 254, Sullivan, 376 Co. v. Times , New York 8/8/2011 (citing a media lawyer who stated, “[p]eople who used to feel frustrated that they a media lawyer who stated, (citing ELETE The legal understanding of who is a public figure must now catch of who is a public figure must The legal understanding D 59 . See, e.g. See, . . Id. Justice Brennan’sobservation some ‘public’ men to that “we are all On a somewhat optimistic note The number of libel cases going to trial has dropped to the point to trial has dropped to the point of libel cases going The number doing the survey on an annual basis, said Sandy worth where it’s not Law Resource Center. Media of the director Baron, the executive biannual-survey now the annual-and about speaking was Ms. Baron of libel and privacy trials that her fi Media Law Resource Center study. In the most recent study, the 50 percent than more were down 2000s in the trials found that libel ‘90s, in the 266 trials; found the center from the 1980s. In the 1980s, 124. In dropped to it past decade 192; in the that number dropped to 2009, only nine surfaced. OT 58 61 , 418 U.S. 334, 356 (1974) (Douglas, J., dissenting) (“I have stated before my view (“I that the J., dissenting) 356 (1974) (Douglas, U.S. 334, , 418 N . ONCLUSION O 59. David Lat, David First Amendment would bar Congress 59. C “doctrine too is bound to pass away as its application to new cases proves its inadequacy to to to new cases proves its inadequacy away as its application to pass bound “doctrine too is protect freedom of the press”); Inc 60. John Koblin, Koblin, 1:52 PM), http://abovethelaw.com/2007/02/brokeback-lawfirm-gera- (Feb. 14, 2007, John Tanz, grinberg-who-is-this-guy/; 60. to criticism they see as unfair. Times advertisement their criticisms th of What’s behind the change? Perhaps the Web, which has (1) created a flood of content, making any individual negative publication less prominent, and (2) given exclusively on the ground thatconcurring) (explaining that “I vote to reverse the Times and cons an absolute, unconditional had the individual defendants infringes on free speech unconstifree speech on infringes plaintiffs to prevail. difficult for libel that makes it very standard and Douglas expressed the view that even the that even the view expressed Douglas and D 418 couldn’t get their viewpoint across now can” by “put[ting] their response on a Web site” or their response on by “put[ting] get their viewpoint across now can” couldn’t outlet that will publish it”). an “find[ing] 2010, 9:23 PM), http://www.observer.com/2010/media/end-libel. http://www.observer.com/2010/media/end-libel. 2010, 9:23 PM), degree,” from a 1971 opinion, has proven prescient. Some 35 years later, opinion, has proven prescient. degree,” from a 1971 age would observewriters in the Internet are all public figures that “[w]e now.” up. the changes some of a result of as are decreasing—perhapslawsuits libel discussedin the media landscape above. Itappears that the number of trial has declined: libel cases going to 385 U.S. at 374, 398 (1967) (Black, J., concurring) (predicting that the J., concurring) (predicting (Black, 398 (1967) 374, at 385 U.S. 30555_cdt_9-2 Sheet No. 46 Side B 08/09/2011 09:04:54 B 08/09/2011 46 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 47 Side A 08/09/2011 09:04:54 PM PM
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position, position, Rosenbloom 419 GE A IGITAL D IGUREHOOD THE IN F UBLIC UBLIC 8/8/2011 ELETE D and adopting Justice Brennan’s more fluid
It is too earlyIt is know, to whether however, the recent libel in decline OT N O M K treating us alltreating us public figures as to some degree,to such law begin can make sense in theage of new media and social networks. trials will be a lasting will be trials be the this to assume than Rather development. case, society isbetter served far by recognizingrevisiting and archaic the surroundinglegal precedent Only by rejecting defamation law. modern Gertz D 2011]P C Y 30555_cdt_9-2 Sheet No. 47 Side A 08/09/2011 09:04:54 A 08/09/2011 47 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 47 Side B 08/09/2011 09:04:54 M K C Y 30555_cdt_9-2 Sheet No. 47 Side B 08/09/2011 09:04:54 B 08/09/2011 47 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 48 Side A 08/09/2011 09:04:54
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L. available for reuse under OWA * ...... 422 ...... , 94 I But we could also focus on 2 nistic consequences. It won’t ? The essay will argue that that ? The essay will argue that that Zarsky. This essay is 421 RIMMELMANN not a beautiful or uniquenot a beautiful snowflake.” Saving Facebook G ...... 430 ...... 421 ...... 424
...... 427 ...... 426 ...... 431 ...... 427 AMES ity of Colorado Law School.ity of Colorado My thanks Law for their comments to ...... 429 J from a spy...... 433 FIRST-CLASS OBJECTS OBJECTS FIRST-CLASS DENTIFIERS I DENTIFIERS I ...... 434 , James Grimmelmann, , James 8/1/2011 James Grimmelmann and @grimmelm James Grimmelmann Unique Identifiers Standardization Third Parties Control Other Examples Knowledge Creation Representation ONSEQUENCES NIQUE ELETE NIQUE C C. A. B. A. B. C. E. U D. D . See, e.g. . See, This brief essay will examine a seemingly technical question: How should we think about privacy in a digital age? One approach 2 OT “You are not special.“You are You are N
ONCLUSION O M K I. U (2009). (2009). and the Privacy School and the Yale Law at Symposium Innovation and Privacy paper at the of this earlier versions I presented York Law School. of Law, New Associate Professor * Press conference at the Univers the Creative Commons Attribution 3.0 United States license, http://creativecommons.org/licenses/by/3.0/us. 1. Fight Club (Fox 1999). the attendees there, to the participants in the MSRNE Social Media Collective mailing in the attendees there, to the participants list, Tal Frank Pasquale, and Aislinn Black, and to D C I. how computers use people: how flows of personal informationhow computers use people: how are transformed is by technology. Just as e-mail from different mail, a spycam is different people represented within computer systems there are two possible ways do it, to and that the choice between them has important technical, social, and huma II. is to focus on how people use computers: how what we choose to share is to focus on how people use computers: online. about ourselves changes when we go C Y 30555_cdt_9-2 Sheet No. 48 Side A 08/09/2011 09:04:54 A 08/09/2011 48 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 48 Side B 08/09/2011 09:04:54 M K , , C Y PM PM
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These These 7 EVELOPERS rks outside of rks outside D 3-5 (5th ed. 2006); ed. 2006); (5th 3-5 . [Vol. 9 [Vol.. WITTER TANDARD S (2006). (2006).
that readers would know he was NICODE NICODE , T
have moved punctuation ma 6 U this tweet: “Frank Pasquale” and 298–300 HE T (Oct. 27, 2010, 12:24 AM), 12:24 AM), (Oct. 27, 2010,
, they would take up 14 and 9 bytes, that is, take up 14 and 9 bytes, that is, they would 5 XPLAINED XPLAINED E WITTER J. L ON TECH. HIGH & TELECOMM. Groups for Twitter; or A Proposal for Twitter Tag Channels Proposal for Twitter Tag Twitter; or A Groups for
3 ONSORTIUM C NICODE NICODE U Counting Characters Counting
, Syntactically, they’re both strings of characters from the 4 (Aug. 25, 2007, 10:00 PM), http://factoryjoe.com/blog/2007/08/25/groups- PM), 10:00 25, 2007, (Aug. NICODE 8/1/2011 Chris Messina, Messina, Chris ITY ITY
U ORPELA C K
ELETE D K. . See . See . See A. and @grimmelm James Grimmelmann The difference is illustratedThe difference Calo October 27, Ryan by a tweet. On Let’s examine two parts of Let’s examine two Privacy and innovation thought pieces by Helen Nissenbaum, Frank pieces thought by Privacy and innovation Yale ISP. up on and others Pasquale, @grimmelm, http://bit.ly/aUtk0v Semantically, “Frank Pasquale” and “@grimmelm” are both names; This second meaning requires some explanation. “grimmelm” is my 7 5 6 OT N O ACTORY UKKA sent the text following to Twitter: F quotations for purposes of precision. of precision. for purposes quotations Latin alphabet, with some enriched standard punctuation symbols. They 9 characters, respectively.contain 14 and In the standard UTF-8 encoding used by Twitter, http://twitter.com/#!/rcalo/status/28913525284. http://twitter.com/#!/rcalo/status/28913525284. and throughoutHere, this essay, I 4. for-twitter-or-a-proposal-for- twitter-tag-channels. for-twitter-or-a-proposal-for- twitter-tag-channels.
3. Ryan Calo, T Ryan Calo, 3. say much new about those consequences—instead, it will show how how will show it those consequences—instead, about new say much linkedclosely they are. D 422 J http://dev.twitter.com/pages/counting_characters (last visited Feb. 24, 2011). 2011). (last visited Feb. 24, http://dev.twitter.com/pages/counting_characters “hashtags” caught on, and millions of“hashtags” caught on, and millions users began deploying Twitter them to annotate a wide range of tweets. The Twitter community embraced other compressed forms, such as the dollar sign “$” followed by 112 and 72 individual ones and zeros. “@grimmelm”. their preferred interpretation to people. is that they refer “Frank Pasquale” is what Calo typed so that readers of his tweet would know he was talking about Frank Pasquale, the Schering-Plough Professor in Health Care Regulation and Enforcement Hall Law School. at Seton so “@grimmelm” is what Calo typed talking about me. Twitter username, so “@grimmelm” is a way of referring to me. Since space is at a premium, and Twitter limits all posts to 140 characters, concision is essential. In 2007, Twitter user Chris Messina started using the pound symbol “#” to flag the topics as “#barcamp” of his tweets, such for a message of interest the Bar Camp event. to attendees of 30555_cdt_9-2 Sheet No. 48 Side B 08/09/2011 09:04:54 B 08/09/2011 48 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 49 Side A 08/09/2011 09:04:54 , PM PM
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NFORMATION NFORMATION , I ), and the at-sign the at-sign ), and 8 itter (and How They Might) to it. The company d as valid names for me. A 423 one kind of name and another— on Twitter. Once the @-syntax BJECTS O http://blog.twitter.com/2008/05/how-replies- does do different things depending
example, Twitter now builds for each LASS LASS -C IRST How to Use @Reply in Twitter Messages @Reply in to Use How How @Replies Work Tw on (Mar. 11, 2009), http://www.techdarkside.com/how-to-use- 11, 2009), (Mar. users, Twitter adapted IDE S
9 ARK
(May 12, 2008, 10:51 AM), (May 12, 2008, , Mad Money on CNBC, TWITTER (Feb. 3 2010, 6:11 PM), 6:11 PM), 3 2010, (Feb. TWITTER Money on CNBC, , Mad D 10 , David Christiansen, Christiansen, , David 8/1/2011 LOG B ELETE D . See, e.g. . See, e.g. See, . This isn’t just a difference between Twitter, however, treats“Frank Pasquale” and “@grimmelm” Within the communityWithin the Twitter of users, “James Grimmelmann” In the posted version, “Frank Pasquale” appears normally, in black
8 9 OT N ECHNOLOGY ECHNOLOGY WITTER O M K (“@”) followed(“@”) particular to a to refer by a username user (e.g., “@grimmelm”). T http://twitter.com/#!/MadMoneyOnCNBC/status/33346776282963969. http://twitter.com/#!/MadMoneyOnCNBC/status/33346776282963969. a stock tickera stock to refer symbol (e.g.,to a company “$” D 2011]F T reply-in-twitter-messages. reply-in-twitter-messages. @Ev [Evan Williams], 10. “James Grimmelmann” versus “@grimmelm”. It also means that Twitter Old-school in tweets. named are who can make distinctionsusers among plain-text names, such as “James Grimmelmann” and “Ryan Calo”, are blobs of unstructured data, no different from “d#fh@@3.pQMNa0”. But tweets with “@rcalo” and “@grimmelm” and “@amturing” now have structure; Twitter’s software can and on who is named by the tweet. For work-on-twitter-and-how.html. work-on-twitter-and-how.html. Twitter user who knew me would understand who knew me Twitter user that they to me; a referred who didn’t knowTwitter user still surmise me would that they referred that name or username.to someone with These usages are both names is the tradition of assigning and capitalizing conventional. True, known,older, more widely More people and more universally followed. will recognize “James Grimmelmann” than “@grimmelm”. But at root, they are both interpretive conventions within an community of humans. is what Calo’s tweetdifferently. Here lookedlike on website: Twitter’s and “@grimmelm” be recognize would both caught on among type. “grimmelm”, however, appears in red. That’s because it’s a hyperlink; it links to my profile page reprogrammed its software such string—an to turn each followed by “@” a username—into a hyperlink to onthat user’s profile page Twitter.com. C Y 30555_cdt_9-2 Sheet No. 49 Side A 08/09/2011 09:04:54 A 08/09/2011 49 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 49 Side B 08/09/2011 09:04:54 M K
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, & . 9 (1976). 9 (1976). . tion of the world in a computer ATE YS S D
ILBERSCHATZ ET AL ET ILBERSCHATZ S particular, database assigns Twitter’s a dern database paradigm is the “relational ATABASE ATABASE The Entity-Relationship Model—Toward a Unified View Model—Toward a of Unified Entity-Relationship The D AMAKRISHNAN R BRAHAM BRAHAM J. L ON TECH. HIGH & TELECOMM. “An entity is a ‘thing’ which can be distinctly (2d ed. 1999); C.J. (2d ed. 13 . AGHU AGHU A Relational Model of Data for of Data Model Relational A R to each user. Since unique are ubiquitous in identifiers YSTEMS YSTEMS entities S RANSACTIONS ON ON RANSACTIONS What Are @Replies and Mentions? and @Replies Are What 8/1/2011 T
E.F. Codd, E.F. Codd, Peter Pin-Shan Chen,
(6th ed. 2010). ed. 2010). (6th at 10. at 10. One describes the world by specifying the (1970). (1970).
(7th ed. 1999); A ed. 1999); (7th ELETE 14 D . See . Id. . See . See generally . See B. Unique Identifiers 377 Similar questions arise when one confronts the problem of database Twitter’s user database is Twitter’s “@grimmelm” its ability to make central to in which one come from the world of databases, Unique identifiers 1 ACM
OT , 15 14 11 12 13 N ANAGEMENT ANAGEMENT ONCEPTS O YSTEMS design: how best to store a representa database. The dominant mo model,” in a database consists of a collection of which which they participate (e.g., “John Doe and Jane Roe are married”). which they participate (e.g., “John Doe and Jane Roe are married”). Unique identifiers pervade the model. only is an entity Not defined in terms of its ability to be uniquely identified, but to say that an entity has one needs to be able to an attribute in a relationship, or participates identify the entity in question.
One way of thinking about the problemOne way of thinking is that one wants to keep track widely-used “entity- they relate to each other. The of things and how relationship describing the world model” formalizes this idea by as a collection of
entities have (e.g., “John Doe’s height is 5’9”) and the “table” metaphor is based on the two-dimensional display of tabular datadisplaytwo-dimensionalis based“table” metaphor on the on paper in rows and columns. (or Each row M S C ACM user a list of the tweets that mention that mention tweets a list of the user by. posted they were whoever her, D 424 Data http://support.twitter.com/groups/31-twitter-basics/topics/109-tweets- 24, 2011). (last visited Feb. messages/articles/14023-what-are-replies-and-mentions identified. A specific person, event company, or an example is of an entity.” meaningful. If I write “@asdfasdfhjsa” in a tweet and click on the tweet and click in a If I write “@asdfasdfhjsa” meaningful. link “This that says, an error message Twitter will display that results, user Twitterdoes not exist.” facts that has a list which records the “grimmelm” and “rcalo” that “d#fh@@3.pQMNa0” are usernames but and “asdfasdfhjsa” In are not. unique identifier it will be helpful to discuss the technicalcomputer science, considerations behind them. about the world seeks to store information 30555_cdt_9-2 Sheet No. 49 Side B 08/09/2011 09:04:54 B 08/09/2011 49 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 50 Side A 08/09/2011 09:04:54
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WITTER assigns each user user assigns each , T internally from then internally from the information unique identifiers. Instead, join, entries in Twitter’s not 425 uses the number number uses the note 12, at 97–98. 12, at 97–98. note th than strings, Twitter , http://www.idfromuser.com (last visited BJECTS r’s servers will understand in the supra , that suffice to tell different rows tell different rows to , that suffice O e design deals with the problem of e design deals with named headingsthe column by (or , trings as the actual trings as the
COM . usage in different is consistent tables you’re talking about, and be able to 18 LASS LASS keys SER -C U EHRKE who es, emotions, galaxies, cars, or judicial es, emotions, IRST G
& ROM Twitter REST API Method: users show API users Method: Twitter REST , More concisely would say and precisely, we that note 12, at 258–64. , IDF Unless we have a way to know the Wills that and 16 17 supra See, e.g. See,
, , http://apiwiki.twitter.com/w/page/22554755/Twitter-REST-API- ATE AMAKRISHNAN AMAKRISHNAN ific user, and does. When a new tweet refers to me or to Ryan Calo using @- using Calo Ryan or to refers to me a new tweet When D
, R , 19 of credits. 8/1/2011 ELETE Find your Twitter ID D , one each, one from the categories . See, e.g. . See, . See, e.g. . See, . Users are entries in Twitter’s databases; they have unique identifiers. Users are entries in Twitter’s databases; they have unique identifiers. Here again, identifiers unique are pervasive. are often They The vital role of unique identifiers for usersThe vital role of unique identifiers in Twitter should now ). For example,). For a course’s in table might database a registrar’s store OT 17 18 Cf N OCUMENTATION O M K slightest. In contrast, one can talkTwitter users in a way about that Twitter will get; it will know databases. Neither are citi opinions. One can talk about these things much much on Twitter, and more, but not in a way that Twitte By contrast, for example,are musical notes syntax, Twitter determines which user it should be associatedby with consulting the database. any new information Whenever that should be comes in—a password change, a newconnected up with a particular user istweet, a new follower, etc.—that information added to another table in an entry that also includes identifier. Everywhere that user’s unique inside Twitter’s systems that a unique it is identifier goes, intended to refer to a spec
fields for Wills “4” where the row the value column intersects the and Trusts for number apart, and with ensuring that their enough to permit meaningful joins. Trusts in the courses tableTrusts in the courses in is the same as the Wills and Trusts the table of studentthere is no schedules, way to generate student transcripts with the correct number of credits. and Trusts a unique Giving Wills value that appears inidentifier—a common both tables—provides an answer. A large literature on databas identifiers, finding or creating or 16. of course. is metaphorical, The “intersection” D values D 2011]F the entry for Wills and Trusts has the for Wills and Trusts the entry number-of-credits value “4” in the field. to meaningfully combine,necessary if we are or from multiple tables. from multiple on. Method:-usersshow (last visited Feb. 24, 2011). Whenever it sees a @username in a tweet, @username in Whenever it sees a 2011). Feb. 24, Method:-usersshow (last visited ID number and appropriate Twitter translates it into the be apparent. 19. s use these character not Twitter does because numbersare easier for computers to work wi a unique ID number. ID number. a unique Feb. 24, 2011) (allowing one to look up the corresponding numerical user ID by typing in a Feb. 24, 2011) (allowing one to look up the corresponding name). Twitter user’s screen C Y 30555_cdt_9-2 Sheet No. 50 Side A 08/09/2011 09:04:54 A 08/09/2011 50 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 50 Side B 08/09/2011 09:04:54 M K C Y PM PM
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These These 20 entries in not . [Vol. 9 [Vol.. mortgage payments, credit , http://waybackmachine.org (last , http://waybackmachine.org (last Users can then retrieve a automatically Try manipulated. (2001). (2001). It crawls the Web repeatedly,
ACHINE In order to report a credit history 22 21 tching unique identifiers. Facebook M a unique identifier that is then cross- n that joins multiple database tables 1408
23 1393, note 2.
. AYBACK AYBACK Privacy and Power: Computer Databases and Metaphors for for Metaphors and Databases Computer and Power: Privacy t across years. Many of these pages refer to EV supra R
W J. L ON TECH. HIGH & TELECOMM. L.
. TAN RCHIVE S
A , 53 , Daniel J. Solove, , Grimmelmann, 8/1/2011 NTERNET NTERNET ELETE D . See, e.g. . See, . See, e.g. . See, C. Other Examples Facebook was designed from the ground up to give people unique By way of consider contrast, theWayback Machine’s near- This phenomenon is hardlyThis phenomenon confined other to Twitter. Many Another classic example of databaseswhich entries represent in OT 21 20 N O computer systems use unique identifiers for people. Consider more a few examples: identifiers. It assembles and other personal real names information into identifier. profiles linked to a unique user highly-structured people is the credit reporting agency. 22. I 22. Information Privacy Information linked in a database with every transactional datumlinked in a database with every transactional available on the person to whom that identifier corresponds: limits,addresses,card and much past Socialmuch more.Security numbers have traditionally identifier of choice, but due been the unique to fraud and mistakes, they’re not always entirely reliable. comprehensive archive of the Web. or credit score for a person, the agency must maintain a file for that person. This file takes the form of
visited Feb. 24, 2011). visited Feb. 24, 2011). system that forlooked likely to people, but the had identifiers be a name, I might create a 23. If I retrieved pages from the Wayback Machine and then scanned them for text that
react accordingly.react Uniqueidentifiers essential are the catalyst in transforming messesunstructured of informationuseful, structured into people. data about D 426 taking snapshots of every webpage it finds. it taking snapshots of every webpage historical archive of any given webpage, seeing what it looked like on various dates stretching ou people. When they do, however, the Internet Archive has no idea that they do. Names are just blobs of text, indistinguishable from any of the other blobs of text in the archived webpages. People are the Internet Archive’s databases. is thus profoundly oriented towards associating people: information with it collates, categorizes, analyzes, exposes, and projects them. (your friends, favorite movies) by ma clicking on a favorite movie in a friend’s profile, for example, and part of the resulting a list of page will contain your friends who also picked that movie as a favorite—a computatio profiles can be sorted, searched,profiles can be sorted, and 30555_cdt_9-2 Sheet No. 50 Side B 08/09/2011 09:04:54 B 08/09/2011 50 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 51 Side A 08/09/2011 09:04:54
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RADEMARKS Compare T 24 standardized
, representation Mar. 21, 2004, at 44 at 44 21, 2004, Mar.
., AMES N AG M e discontinuous way in OMAIN . IMES IMES T D
427 ng to the table are hard for decays , N.Y. BJECTS which computer systems which computer become of them to give people canonical O NTERNET NTERNET I
, LASS LASS produce a well-defined produce a well-defined -C IRST IPTON that result, and th that result, L normalization
errors Get Out of My Namespace Out Get ACQUELINE ACQUELINE J (2010). (2010). 8/1/2011 of identifiers, PEECH James Gleick, S are echoed in the land-rush every time a new social media service are echoed in the land-rush every ELETE ONSEQUENCES 25 D . See generally . See . See A. Standardization REE REE people. Getting to @grimmelm, easy as it looks. however, isn’t as The first Let us explore some of the consequences some of the Let us explore people unique of giving Ordinary names aren’t unique: think of “John Smith”. Unique identifiers and structured data are inherentlyUnique identifiers F OT 25 24 C N
O M K (“You don’t own your name. Just ask any John Smith.”). Smith.”). ask any John your name. Just own (“You don’t that with Twitter usernames: there is only one “@grimmelm”. The requires that different people have “unique” in “unique identifier” different identifiers. is normalization. The flipside of uniqueness Sometimes quite right—but people call me “Jim”, which isn’t isn’t quite wrong, either. These slippages are unproblematic in life, everyday but the kind of contextual insights people bri process would be imperfect, approximate, and error-prone. imperfect, approximate, and error-prone. process would be II. D 2011]F computers to replicate. Unique identifiers deal withcomputers to replicate. Unique identifiers the problem by making identifiers canonical. Instead of dithering over whether I prefer to be called “James” “Jim”, just use “@grimmelm”. or It does the right thing. problem is inherent in the need for uniqueness: the real world is filled confusinglywith people who use identical or similar names. Precisely because there can be only one “@grimmelm”,can have it, only one of us and that means conflict. The endemic fights over domain and enduring names AND identifiers in orderidentifiers to create databaseentries simple on them. This technical surprisingly move has effects. It connects wide-ranging to so it suggests scholarship that and technology in privacy many observations shift. Unique identifiers about the fundamental there is something are to the process by the key, so to speak, about By imposing structure, one can that is from free much of of unstructured the ambiguity As we data. shall see, this standardization is central to the tremendous of power world is itself But since the unique identifiers. unstructured and ofambiguous, the process its own standardizing identifiers introduces errors. I will break standardization down into four components: uniqueness names, the inevitable which data attached to unique identifiers C Y 30555_cdt_9-2 Sheet No. 51 Side A 08/09/2011 09:04:54 A 08/09/2011 51 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 51 Side B 08/09/2011 09:04:54 M K
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to enter the someone data; that ection. Misspellings and other , on increases the risk of truly eater riska of ample, when the se d (which is quite often, as unique nce of the servers went wrong, and backups backups and nce of the servers went wrong, re they multiply and feed each other. other. each feed and they multiply re identifiers never can be specified NION e one hand, stand ULING THE ULING THE U (2004). (2004).
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, . digitization and digitization 87-88 here: many or most random errors become or most random many here: akes (think of how much faster it is to spell- is it faster much how of (think akes Facebook LandFacebook Rush to Start in Three Days UELLER their contact books. M J. L ON TECH. HIGH & TELECOMM. ELECOMMS ers out from their data. Sidekick Users See Their Data Vanish Into a Cloud a Into Vanish Data See Their Users Sidekick T
YBERSPACE YBERSPACE 28 L ILTON ’ C NT M , I , Verne Kopytoff, Kopytoff, , Verne 8/1/2011 AMING OF Rob Pegoraro, T ELETE D . See . See, e.g. . See, . See, e.g. . See generally . See Another source of error passage is the The second problem is that while a problem is that The second be identifiers may set of unique Standardization helps OT 29 26 27 28 N O Microsoft’s Sidekickcustomersthousandsphone mobilefailed, users of suddenly lost access to risk of truly catastrophic failure. For ex minor mistakes are easier to spot are easier to mistakes minor On the other hand, each other. centripetal role by facilitating error corr centripetal role by facilitating error clean and well-structured,clean and world is the process of but. The anything mappingthe world onto those completely and correctly. Someone has will make typos guesses. Whenever data from two and bad different is to be combine databases or sources identifiers introduceerrors. Identity fresh theft, wrong addresses, conflation with with the same name—all other people of these crossed whenwires can be triggered a credit file is populated with outside is mistakenlyinformation which assigned to your identifier in the antheseof terminology,database are the results mistakes In database. improperly specified join operation—one that combines two tables using a poorly-chosen key. identifiers make this aggregation attractive),identifiers make this data is a mixed blessing. One th
(June2009, 9, 3:45 PM),http://www.sfgate.com/cgi-bin/blogs/techchron/detail?entry_id=41455. hands outhands identities on afirst-come, first-served basis. D 428 artificial be can identifiers theychallenge: a technical non-trivial need infrastructureto create, distribute, and manage. AND THE AND THE inherently political. inherently Oct. 13, 2009, at A14. Sidekick users’ information, such as address books and to-do-lists, was was books and to-do-lists, address such as users’ information, Sidekick A14. at 2009, Oct. 13, servers. Maintena on company primarily stored proved unusuable, locking us international standard on generating and distributing unique identifiers). unique and distributing generating standard on international resilience against daily small errors is a gr
On the otherhand, this centralizati check a word processing document than the same manuscript in printed check a word processing document form). Normalization plays a centripetal role, fixing up misspellings and befo mistakes minor other eliminating catastrophic failure. easily-spotted syntactic mist 30555_cdt_9-2 Sheet No. 51 Side B 08/09/2011 09:04:54 B 08/09/2011 51 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 52 Side A 08/09/2011 09:04:54
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COBLEIZER , S Then there is there Then 30 : The more valuable and ensure that theyensure that really are nating role. Withoutthesenating role. 429 BJECTS O would become an ordinary namewould become an r of convention tacit human and LASS LASS -C users have on the third party’s continued users have on the fixed reference. IRST . “@grimmelm” has its special meaning because its specialmeaning has . “@grimmelm” the third party against user attempts to enjoys party. Dependence first Facebook Has a Point Where It Comes to Your Privacy Comes Where It Point Facebook Has a dependence use them to interact with and learn about you. No lock-in third parties 8/1/2011 Robert Scoble, other people ELETE D . See B. Parties Third We will have much more to say about third parties, but for the more to say about third parties, We will have much These third partieslock-in effect, precisely also enjoy a kind of Compounding the problem, it’s much harder to move structured Unique identifiers don’t justUnique identifiers to Someone has on their own. happen OT 30 N O M K moment, I would like to emphasizemoment, I would two ways in which their special role manifests itself: the switch to another third support, and the important an identifier, the more one has to lose if it goes away. Because a unique identifier is controlled by a specific entity, than being rather dispersed throughout a community, as a traditional be, one name would becomes dependent on the entity. The who holds a unique third party identifier holds the name itself hostage, and possibly the person. As anyone who’s been locked out of their e-mail account can attest, losing an important unique identifier can be devastating. If Facebook collapses, all the information locked in its proprietary formats and adapted to its social network will be simply gone. (May 15, 2008), http://scobleizer.com/2008/05/15/facebook-has-a-point-where-it-comes-to- (May 15, 2008), your-privacy.
D 2011]F knowledge, not an automated, knowledge, not an of Twitter’s efforts. Similarly,of Twitter’s a credit need to consult you agency’s files to run a credit report on someone, and social security numbers depend on the Social Security Administration’s coordi Grimmelmann”.again, like “James to People could still use it to refer me, but this would be a matte because one wants to person on a social network; no one would query be the only a credit agency with a single file. But everyone if in your industry is on LinkedIn,every landlord uses the same you may need to be too, and if background-check service,your file you had better worry about what says about you. data around To leave Facebook for a competing than unstructured data. social network, for example, I will need to export the data in a structured format (which Facebook does not currently allow or enable), and find a competitor using a compatible format for its own data. third parties, unique identifiers lose theirthird parties, unique special meanings. If Twitter vanished tomorrow, “@grimmelm” unique. The use of unique identifiers, in other words, is inherentlyin other words, is tied identifiers, The use of unique unique. to particular build the database, create identifiers, and identifiers, and database, create build the C Y 30555_cdt_9-2 Sheet No. 52 Side A 08/09/2011 09:04:54 A 08/09/2011 52 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 52 Side B 08/09/2011 09:04:54 M K C Y PM PM
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about a person from of information about of information about about populations by May 2001, at 34, 36-38. at 34, 36-38. 2001, May
., . [Vol. 9 [Vol..
M of all of the references to of all of the references about bring them. I will A
. tabase. Having entriesfor CI nd Amazon can recommend credit score is one kind of , S
aggregation ation of complex relationships of enumeration statistical analysis automated reasoning The Semantic Web creation of knowledge : listing all of the references to a given person. : listing all of the references to a given person. J. L ON TECH. HIGH & TELECOMM.
31 enumeration 8/1/2011 Tim Berners-Lee et al., Berners-Lee Tim ELETE D . See C. Knowledge Creation Using unique enables a wide variety of identifiers for people One particularly simple, but important, form of automated Unique identifiers are remarkably convenient focal points for data are remarkably convenient focal Unique identifiers Once multiple pieces of information are associated with a person in OT 31 N O multiple pieces of information, the multiple pieces of a database, and a given person in
practices that involve the the problem of interoperability: for example, Facebook now providesFacebook for example, of interoperability: problem the serviceslogin websites other for and including services, One Skype. could see as making identity this either more portable by allowing a user by identity less portable or as making Facebook, forcing only to to sign in everything through to flow Facebook. on each other: the out four, which build D 430 sources, a person from multiple summarizingabout multiple people. information reasoning is aggregation. Within a database, this is often the point of having unique identifiers at all: to allow them to serve as keys for joining from two data different tables. That works with unique identifiers; it doesn’t work without them. The registrar can put information about my courses from the courses the facultytable together with information about me from table to produce a personalized schedule when I am that indicates expected to be in class. There is more in this combined information view than there was in either table alone. can happen This same phenomenon on a larger scale when multiple databases are brought together—or when new information is added to an existing da ofout simpler pieces—that is, drawing conclusions on the basis aggregated data. people in a database is an essential step in bringing together information about them from many different sources. you’ve purchased, viewed, andnew books based on previous ones Web dream, of course:reviewed. This is the Semantic everything encoded in a way that supports the cre a database, itdatabase,computerpossiblebecomes a program to engagein to ask a automated reasoning about them. A automated reasoning: one that results from algorithmically combining large quantities of financial data according to a set formula. Similarly, Foursquare can conclude people are in that multiple the same physical space based on their check-ins, a separate 30555_cdt_9-2 Sheet No. 52 Side B 08/09/2011 09:04:54 B 08/09/2011 52 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 53 Side A 08/09/2011 09:04:54 PM PM
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of one’s that they visibility by shaping how monitoring misrepresentation representation n all that such items are 431 doesn’t hold in general; I am self-presentation BJECTS ta miner deciding which customers O LASS LASS -C a social network profile. Beyond that, IRST 8/1/2011 ELETE D D. Representation How does an online persona differ from the numerous offline A different way to extend automated reasoningA different way is to draw We have noted that unique are essential for representing identifiers OT N O M K personas people have always created for particular social roles? A unique identifier provides a centralizing, coordinating location for aggregating various personal qualities into the digital self one wishes to show to the world: an e-mail address or person by a distorted digital persona, and proactive digital presence. That is, you can look is, you That Twitter through for all thetweets that mention a or throughuser Facebook photosfor all the in which is tagged, someone high confidenceand have you have see that youpossible for see. to property This and the depends on normalization parties.use of third The is third party maintaining a single source a a person, list of data about complete and normalization means there is a waystandard ensuring of person to that that all references are associated with their digital identifier. This property quite certain that I I’m referenced don’t know all of the places on the Web. For a lawyer doing building a due diligence, a private investigator college student untaggingfile, or a nervous at a keg photos of herself party, enumeration is a godsend. D 2011]F conclusions not about individuals about but populations. is the This goal of statistical reasoning. the use of unique identifiers reaches Here, back offar beyond the dawn digital computing, the parallel growth of into bureaucracy and demography. The da flyer for a neware most likely to respond to a promotional toothpaste, the transportation planner estimating the number of subway cars needed theover the next five fiscal years, and for a pollster gauging support candidate are all dealing with abstracted statements about people. The unique identifiers may have receded into the background here, but note they start by identifying and that these exercises are futile unless of individuals.differentiating the characteristics Gauging the likely the same personoutcome of an election by surveying five hundred times is ridiculous; surveying five hundred different people is not. people in databases. But there is another kind of identifiers are pervasively linked to enable: to other people. Unique social uses oftechnology, digital of roles in because they play all sorts that other people see. I would like to shaping the presentations of people call out four in particular: voluntary one’s digital persona is built up, increased and involuntary one’s actions and attributes, the possibility of C Y 30555_cdt_9-2 Sheet No. 53 Side A 08/09/2011 09:04:54 A 08/09/2011 53 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 53 Side B 08/09/2011 09:04:54 M K , C Y PM PM
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MART S EWROTE THE THE EWROTE R Paul Ohm’s RIVACY IN THE THE IN RIVACY P 35 ELECT that commercial IVALS ; we have already It may have to do It may have R 33 . [Vol. 9 [Vol.. 1-2 (2005). 1-2 (2005). t it wrong, but the third ECHNOLOGY AND AND ECHNOLOGY correct data as a credit rating agency can T
: rs have a special kind of power OOGLE AND ITS OOGLE ULTURE bases about people. Not only can G C ERSON OW P H the gigantic databases
: you to make that search when you can IGITAL IGITAL EARCH there seems be a natural to enthusiasm for . 1701, 1705 (2010). (2010). 1701, 1705 . D note 2, at 1176. S 32 EV J. L ON TECH. HIGH & TELECOMM. HE HE HE HE RANSFORMED OUR OUR RANSFORMED supra T T
, T ,
36 John Battelle’s “database of intentions,” Broken PromisesPrivacy: of Responding tothe Surprising Failure of 34 2 (2006). 2 (2006). OLOVE S GE ATTELLE A B ., Which Hegel’s Phenomenology of Spirit Character Are S You? 8/1/2011 , 57 UCLA L. R L. UCLA , 57 UISNESS AND AND UISNESS Grimmelmann, B ANIEL OHN ELETE D . See, e.g . See, . See On the other hand, if you’re in a database, it’s harder to hide. if you’re in a database,On the other hand, it’s harder to hide. Moreover, visible data need not be With enumeration, however, comes the possibility that one could OT 32 33 N ULES OF ULES OF O NFORMATION NFORMATION crafting using digital avatars well-defined categories. I R though, peoplethough, to gravitate almost seem structured to using their data for well-defined to the Geek Code the From self-identification. in a slots Facebookto the millions profile of online fill out to tell quizzes people themselves, others about D 432 (October 2000), http://www.selectsmart.com/FREE/select.php?client=hupitesti. 34. D 34. 35. J 35. “databases of ruin.” profilers have These identifiers on all of us. also help stalkers and other private individuals do the same. to look you up, I can get If I’m trying is. You may I figure out what your Twitter handle much further once not have put your real that it’s but if I can infer name on the account, you, the centralized, normalized role that it plays helps me build an no extensive file on you quickly. It is that thinkers have castaccident personal, uniquely uniquely the about for metaphors to express threatening characteristics of these new databases: Daniel Solove’s “digital dossiers,” with the creativity-promoting qualities of constraint, qualities of creativity-promoting with the but also with the of structuredsocial usefulness signals. A unique identifier provides the these additionalfixed point to which attributes can be attached in a structured way. You’re more visible, because cat hair data sticks to unique identifiers like to sweaters. We all know about 36. Paul Ohm, Paul 36. Anonymization anyone who supplies data about a person ge anyone who supplies data about a parties who control the unique identifie notedthe pervasiveness of errors in data over how a person is represented. Just Facebook could metaphoricallydestroy my ability to get a mortgage, or Twitterscribble a mustache on my profile could redirect every mention of “@grimmelm” to my mortal enemy. protect one’s privacy through proactive monitoring.If you want to keep something secret, but there are manywhere places could people be a Pokemon problem: gotta catch talking about the secret, then you have ‘em all. Itis much easier for 30555_cdt_9-2 Sheet No. 53 Side B 08/09/2011 09:04:54 B 08/09/2011 53 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 54 Side A 08/09/2011 09:04:54 , PM PM
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LLIANCE LLIANCE C A E-M ELP H of individuals by OW THE TRATEGIC S H
: the deportation and power. On the one HE for example,sends me T ACEBOOK ACEBOOK
: ECALL R , F 433 empowerment
Sorting people based on their stration, the essential inputs to OTAL 38 39 BJECTS OLOCAUST compile. This is the positive face O , T H the references from me, I do can 127 (2009). (2009). 127 LASS LASS -C This works only imperfectly in a non- only imperfectly This works around personal information. Some of aroundSome information. personal 37 EMMELL IRST G AND THE IM VERYTHING J control
E IBM &
, of individuals by those who use detailed personal ELL B LACK HANGE HANGE B C referenceyourself. to Facebook, ILL of individuals by others who “reduce” them to an entry in a W 8/1/2011 ORDON ORDON DWIN every E G ELETE of individuals by outside entities use the identifier who as a focal manipulation D . See Privacy, Editing, Tagging, and Abuse Editing, Tagging, See Privacy, . . See . See E. Control Start with empowerment: Having structured data about oneself in Finally and most famously,Finally and most the unique identifiers profoundly shape On the other hand, knowledge is power. Governments have known OT 37 39 38 N EVOLUTION O M K of aggregation. Lifelogging is a kind of self-help version of aggregationof aggregation. Lifelogging is a kind with precisely this goal: collecting and collating large quantities of data about oneself to grow in self-knowledge. profiles to shape what they see and think, and the pure existentialprofiles to shape what they see objectification database. healthdigital form can be useful. The electronic probably the record is for me to have a single digitalbest example. It’s enormously helpful file that I can share with a new doctor, rather than there being scattered locations, digital and paper, which I information about me in different have to search out, pore through, and these moves empower individuals;these moves empower others leave them comparatively helpless. I will bring four out from themes these extensive debates, all of to unique identifiers: which can be linked centralized, non-normalized It space like the Web. leaves me dependent, all of to let me step through of the third party on the good will however, the relevant references. If it hides nothing. and dynamics of power helping them accumulate self-knowledge in a structured way, self-knowledge in a structured helping them accumulate panoptic control point, execution of Jews during the Holocaust. hand, this facilitates technocratic expert administration; on the other hand, punch-card technology helped organize this since long before the age. digital The Domesday Book and the on people and theirsecret police file catalogue information activities. card on, added database structure. The census, from the age of the punch These are theadmini tools of rational bureaucracy and the extension of governmental R a message every time someone tags a photo of me,photo of tags a someone time every a message lets me and refuse entirelybe to in Places. tagged enumerate D 2011]F
http://www.facebook.com/help/?page=831 (last visited Mar. 11, 2011). Mar. 11, 2011). (last visited http://www.facebook.com/help/?page=831 C Y 30555_cdt_9-2 Sheet No. 54 Side A 08/09/2011 09:04:54 A 08/09/2011 54 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 54 Side B 08/09/2011 09:04:54 M K C Y PM PM
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5 Y OMPUTER 44 (2001). C 141 (2d ed. ed. 141 (2d CONOMY OF CONOMY OF
E 40 RAGMATICS OLITICAL ORPORATION ORPORATION P What some authors What some P C
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: one from the field of NTERPRETATION OF NTERPRETATION I ORT represented a database is in S ANGUAGE ANGUAGE OWERFUL L P onal characteristicsis also central exert power over you, possibly to OST One computing website explains the larger institutions that make up or mutilated,” this was the idea at or mutilated,” this M 43 ANOPTIC S ’ P nt, the growth of bureaucracy, and the HE (2004). (2004).
TRUCTURE AND T Mine YourOwn Business!”: Makingthe Casefor the ROGRAMMING ROGRAMMING
., P MERICA ., S
tem which directly represents certain thingstem which directly represents certain R , A J 46-48
J. L ON TECH. HIGH & TELECOMM. 43, ansition from unstructured COTT 134 (1993). (1993). 134 “Do Not Fold, Spindle or Mutilate”: A Cultural History of the Punch Punch the History of Cultural A “Do Not Fold, Spindle or Mutilate”: S ANDY
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AZI . NFORMATION MER O M I Steven Lubar, Steven Lubar, person N A
AROLD ELETE It is possible to argue that being It is possible to ECH D 42 . See . See . See . See, e.g. T Finally, some go a step further and argue that being represented in a Another computer science term, this Another computer science term, This has been an essay about representing people in databases. I The fear of controlThe on pers based
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B P J.L. characteristics is a form of comprehensive control over them. D 434 Card see as empowerment, others manipulation. see as advertising The firm that of yourbuilds a profile browsing habits (even, perhaps, if it can’t personal uses that by name) nonetheless identify you to mark you profile is made specific that knowledge—which to you. It uses and market and actionable by the database entry—to your disadvantage. database can be intrinsically objectifying. It flattens out to one’s identity the standardized by forms supported When protesters the system. in marched against computerization with shouts that people the 1960s, were not to be “folded, spindled, work.
intrinsicallyone’s human dignity. demeaning to It strips out the respect for your personhood that demands you be recognized as a full, worthy, complex Opinion, Public the Data Mining ofthe Forum of Personal of Information in Implications 2006); H is of critical importance for thinking aboutprivacy and social interactions. There are echoes of at least three previous shifts in this transition: the introduction of pri rise of digital media. All three of them have reworked the relationships of individuals to each other, and to use of unique and countries. The their worlds: communities, companies, people will have its databases about identifiers as the keys to structured own dramatic consequences. programming languages, is suggestive of the values at stake. One sometimes says that a sys treats them as have argued that the tr to debates overto debates personalized, targeted advertising. 30555_cdt_9-2 Sheet No. 54 Side B 08/09/2011 09:04:54 B 08/09/2011 54 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 55 Side A 08/09/2011 09:04:54 ., PM PM
NC I 4:52
, ROGRAMMING ROGRAMMING P UNNINGHAM 11, 32–34 (2000). 32–34 (2000). 11,
C 44 It is easier to work with with work to easier is It 45 SSENTIALS OF OF SSENTIALS other kind of data, like a other kind of data, in C, because functions are
E 435 &
Fundamental Concepts in Programming Programming in Concepts Fundamental ., Twitter: it has the capacity to OMPUTATION BJECTS C O ncernthe name they deserve. suggests : this representation enables useful LASS LASS -C : when these systems represent people, it : when these systems represent people, YMBOLIC IRST S
be stored, modified, and passed around. In and passed modified, be stored, RIEDMAN ET AL ET RIEDMAN & UNNINGHAM UNNINGHAM F first-class objects
can be created and used.” created can be P. RDER RDER -O , C ANIEL IGHER , D H (2d ed. 1996); Christopher Strachey, Christopher (2d ed. 1996);
8/1/2011 24–25 (1992) (“First class procedures contribute greatly to the expressive power greatly to the expressive class procedures contribute (1992) (“First 24–25 13 76 in , ELETE D . First . First Class . See, e.g. I have argued that treating people objects— as first-class
People are first-class objects on For example, programming in some C, functions languages, like are OT 44 45 N O ANGUAGES ROGRAMS ROGRAMS M K is often without their knowledgeor consent. representing them with digital identifiers—has significant technical and well. as shouldlegal consequences social consequences. Perhapsit have We should expect the creators of these objects to take care to first-class treat people with the respect and co features that connect directly to these individuals’ wants and needs. On the other, people are also first-class in C. in Scheme and not and reason about functions in Scheme than and reason about distinguishmany other them. The same is true in the and reason about systems a way of representing that give people unique identifiers as them are illuminating.in databases. Both halves of the phrase On the one hand, people are truly
http://www.c2.com/cgi/wiki?FirstClass (last visited Mar. 11, 2011). Mar. 11, 2011). (last visited http://www.c2.com/cgi/wiki?FirstClass P L that an elementthat language in a programming is first-class there “when are it on how no restrictions D 2011]F of a language.”). of a language.”). Languages not first-class. Any that subcomputation the program will carry out must the programmer, in advance by be specified there are significant and how functions can limits on languages,other programming like Scheme,functions are first-class: the just like it would any computer treats them flexibility. Scheme true/false. This leads to great number or a binary programmers can add new functionality as the program runs; on the fly thingsthey can do clever with functions that C programmers can only mimic imperfectly greater length. and at much C Y 30555_cdt_9-2 Sheet No. 55 Side A 08/09/2011 09:04:54 A 08/09/2011 55 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 55 Side B 08/09/2011 09:04:54 M K C Y 30555_cdt_9-2 Sheet No. 55 Side B 08/09/2011 09:04:54 B 08/09/2011 55 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 56 Side A 08/09/2011 09:04:54 PM PM
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the Conversion * Bieber for their research of the authors and do not of the authors and do not ...... 459 ...... 440 ...... 455 ...... RIEGER
...... 461 ...... P 1
and Policies Affecting E...... 446 ...... ARKET ...... 459 M AMES J
437 ...... 448 ...... & , 23 FCC Rcd. 2994, 3017 ¶ 41 (2007) [hereinafter [hereinafter ¶ 41 (2007) Rcd. 2994, 3017 , 23 FCC Kevin Chlebik, and James Kevin Chlebik, and James (and any errors) are those ...... 441 ...... ELEVISION e Federal Communications Commission, the United States ROULETTE: ROULETTE: ILLER ILLER T TRANSITION TRANSITION DTV ...... 455 M Existing LicenseHolders Reallocations and New Users Report & Order AMES ...... 438 J The Evolution of the Networks and the Ownership Cap ...... 449 453 Current Organization of ...... the Industry The Mandatory Transition to DTV and Cessation of 462 ...... Analog Broadcasting a. Changes in Power Requirements and SpectrumChanges in Power Requirements and Allocation ...... 459 b. ROADCAST WITCH TO S B 8/1/2011 Regulatory Aspects 1. 2. Wireless Engineering and Physics Industrial Organization 2. 1. The Development of the DTV Standard The Long, Slowtoward Transition March STRATEGIC ASPECTS OF THE DTV OF THE ASPECTS STRATEGIC HE HE ELETE C. T T A. B. A. B. D Furthermore, we expect that many stations will transition early and that many stations will transition Furthermore, we expect in advance of the post-transition facilities their final begin operating months. winter onset of the deadline and the OT THE BROADCASTERS’ TRANSITION DATE DATE TRANSITION THE BROADCASTERS’ N
O NTRODUCTION M K I. * James * Miller is an Adjunct Professor of College Attorney the of Law and a Senior Advisor at Commission. Federal Communications Law at American University, Washington at Policy of Public Associate Professor an is E. Prieger James JamesMillerEsquire@gmail.com. thank We [email protected]. Public Policy. of School Pepperdine University, I D II. Third Review R&O]. assistance. The opinions expressed assistance. necessarily represent the views of th commenters. Government, or any of the 1. Third Periodic Review of the Comm’ns Rules To Digital Television, To Digital Michelle Connolly, Evan Kwerel, Jonathan Levy, Harold Furchtgott-Roth, Robert Weller, Harold Furchtgott-Roth, Levy, Jonathan Evan Kwerel, Michelle Connolly, helpful Research Conference for Policy Telecommunications 2009 at the participants and David Mansdoerfer, comments, and C Y 30555_cdt_9-2 Sheet No. 56 Side A 08/09/2011 09:04:54 A 08/09/2011 56 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 56 Side B 08/09/2011 09:04:54 M K C Y PM PM
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...... 469 ...... 463 ...... 477 ...... 473 ...... [Vol. 9 [Vol...... 472 RANSITION ...... 470 ...... T der LPTV stations further in this der LPTV stations ...... 465
RANSITION T (Aug. 19, 2009), 2009), 19, (Aug. oother motion, better sound, N ’ DTV Today, all full-power stations tions for voluntary transitioning 2 ...... 483 ...... 480 ...... OMM ...... 484 C ...... 475 ...... 473 ...... ion ...... ion ...... 479 ODEL N ’ Analysis ...... 480 ...... M J. L ON TECH. HIGH & TELECOMM. OMMC C ONCERNS OF THE OF ONCERNS XAMINATION OF THE C E Regression Analysis Preliminary Analysis FCC RulesFCC for Transitioning Legislative HistoryLegislative DTV Transition of the
to transition as well. We do not consi as well. We do to transition
...... 477 ...... HEORETIC ...... 490 Market Level a. b. Individual Stations’ Decisions ...... 483 ...... Individual Stations’ Decisions Market Informat Stations’ Decisions and Characteristics ...... 477 Stations’...... Decisions and Characteristics b. a. T FCC Consumer Advisory: The DTV Transition and LPTV/Class A/Translator A/Translator LPTV/Class and Transition The DTV Advisory: Consumer FCC
ED see 8/1/2011 1. 2. 2. Empirical Results 1. The Costs of the Transition for Stations of the Transition for The Costs Other Strategic Aspects of the Transition Economic ModelsEconomic Decision of the Transition Data Decision Theoretic Model Decision Theoretic AME MPIRICAL TRATEGIC TRATEGIC ELETE B. S C. A. B. D. A. E G D s, F s, The analog to digital “DTV in the transition” recently completed
OT N ONCLUSIONS O NTRODUCTION C III. transmit only DTV. The date was the culmination of more than ten providedbroadcast station that years of complex regulatory decisions managers with varying regulatory condi and multiple mandatory cutoff dates. in now stations are LPTV than 2,100 and more 1982, service since television (“LPTV”) 2. has licensed low-power the FCC full-power stations, licensing of addition to the In locally-oriented television service in small for opportunities “provide stations operation. LPTV communities”; Station D 438 article. V. http://www.fcc.gov/cgb/consumerfacts/DTVandLPTV.html. The June 2009 DTV transition transition The June 2009 DTV http://www.fcc.gov/cgb/consumerfacts/DTVandLPTV.html. will eventually that it the FCC has stated deadline did not apply to LPTV stations, although require these stations IV. U.S. was a technological event unprecedented in scale in the broadcastU.S. was a technological event unprecedented television industry, touching nearly every American household directly or indirectly. Consumers’ demand for the new digital television (“DTV”) sm services, which have a sharper picture, and multiple sub-channels providing more viewing options, reflects the the On June 12, 2009, consumption. changing face of media delivery and last full-powertelevision stations in the U.S. ceased over-the-air transmissionof analog programming. I 30555_cdt_9-2 Sheet No. 56 Side B 08/09/2011 09:04:54 B 08/09/2011 56 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 57 Side A 08/09/2011 09:04:54 PM
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Prisoners’ temporarily, and 439 each station must each station must ions’ business decisions, OULETTE R detailed examination of the detailed examination ATE ATE of how the transition fits into D can become a classic its viewership when deciding to l a later date. Despite the FCC’s delay transition when they would footprints could cost a station alog viewers at least t also switch to DTV early, because RANSITION T and regulatory forces. In article, we this
’ n transitioned individually in and varying incorporate strategic thinking on the part of switching to DTV. Broadcasting in DTV switching to DTV. Broadcasting to habit-formation. Thus,to habit-formation. rategic aspects of the stat rategic aspects of ing in the U.S. and a ing in the U.S. and ROADCASTERS B HE 6/21/2011 ELETE D The models predict that stations The inherent tradeoff between switching earlier or later depends on Stations aroundStations the natio OT N O M K D 2011]T Dilemma, wherein each station would neitherlike to lower its costs but see only small cost savings from transitioning relative to their expected see only small cost savings from transitioning lost revenue. In the game, such cases consider but also the decisions not only its own costs and revenues, made by the other stations. The game theoretic model builds on the simpler decision theoretic model to the station. In the game, a station manager considersimpact of the other stations’ decisions on its profit when making its choice. perhaps permanently due switch early. However, fears of losing viewers are heightened ifother stations in the market local do no rival stations might gain the lost an expectation at the end of 2007 that many stations wouldexpectation at the transition even article, most did of this beginning before February 2009, quoted at the not. We examine both theoryexplore makingdecision to and data the process of broadcast station managers facing a choice of when to switch to all-digital broadcasting. the costs and benefits of viewership, and therefore advertising revenue. In the decision theoretic costs own its only considers management a station’s we develop, model on and the effect of its own decision modeling their choices with tools frommodeling their choices theory and game theory. decision In particular, at the our empirical examination looks stations’ decisions off analog broadcastingwhether to switch 2009, the on February 17, or whether date until Congress delayed the deadline, planned transition to continue in to broadcast analog unti requires much less power than in analog, and the electricity savings can be substantial.Balancingthe cost savings are fears that technical problems or changing broadcast stations’ final decisions regarding when to switch. In the latter, we focus and st on the economic degrees ofdegrees coordination with each bothother, and markets in the local nationalthroughout engineering networks. Facing economic and changecould dramatically, costs and revenue their that concerns stations acted in responseto both market and describe theidentify various that influenced forces theDTV transition. We look at both the big picture the history of broadcast C Y 30555_cdt_9-2 Sheet No. 57 Side A 08/09/2011 09:04:54 A 08/09/2011 57 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 57 Side B 08/09/2011 09:04:54 M K
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OUNDSTONE e large cost e large P understand the In general, both ILLIAM W . [Vol. 9 [Vol.. ere each player’s best individual ere each player’s best individual , stations fac , stations
rs better were not merely considering (in the game), stations switch(in the game), ARKET market inU.S., the to set the see generally on IV presents the financial and n-technical introduction to the Prisoners’ the Prisoners’ to introduction n-technical M c examinations data yield of the ) or the expected of gain viewers the U.S. broadcast television market DTV standard and the long process of ision broadcasting industry.ision broadcasting ELEVISION refers to a class of games wh refers to games a class of T J. L ON TECH. HIGH & TELECOMM. When, on the other hand the other on When, 3 (1992). (1992). ROADCAST ILEMMA 6/21/2011 B D S ’ ELETE HE D These outcomes from observable suggest several the models The article is organized as follows. Section II contains background We begin by explaining the history, regulatory oversight, and OT N O RISONER information on the broadcast television market, coveringinformation on the broadcast television its regulation, engineering aspects, and the organization of the industry. Section III discusses the development of the the DTV transition in the U.S. Secti intostrategic considerations that factored a television station’s of decision Section V introduces our economicwhen to turn off analog broadcasting. ofthemodels transition decision and derives testableimplications. The models draw on both decision theory and game Section theory. VI introduces the data we collect on and tests the predictions of the economic models with simple statisticalsimplepredictionsand tests the economic models with the of analysis and with regression analysis. A final section concludes. I. T 3. The Prisoners’ Dilemma P strategy is to choose an action that is the opposite of theagree to opposite of action that the players would is the choose an action that strategy is to of an archetype The Prisoners’ coordinate their actions. Dilemma is thus play if they could situations inwhich individual incentives lead toan inefficient equilibrium, compared to the no For a outcome. cooperative (unsustainable) Dilemma and its influence on public policy, does indoes equilibrium. D 440 results that are in line with the predictions ofresults that are in results the models. The line with the predictions indicate that station indeedmanagers were thinking strategically when transition decisionsthey made their and their own cost savings apart from what other stations were doing. The results thus provide insight into the stations’ decision-making process, which can help regulato market observers and from the otherfrom the stationsfrom delaying early. and the stations’ decisions and test using which we explore implications, other data from the telev casual and more formal econometri savings lossthe expected to early relative switching from when of viewers transitioning (indecision the model calculus of the industry. current state of the broadcast television stage for the examination of the strategic aspects stations’ decisions of the regarding switching to DTV. 30555_cdt_9-2 Sheet No. 57 Side B 08/09/2011 09:04:54 B 08/09/2011 57 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 58 Side A 08/09/2011 09:04:54 PM
ICK R
Radio Radio 1:18
& ICHARD See R UGH ALLARD H B d to keep in contact d to keep in contact
See See ECHNOLOGY IN THE IN THE ECHNOLOGY D. T 441 high demand for use OBERT OBERT R OULETTE R of the art technology. For See ns on use of radio spectrumns on use of radio ROADCAST ROADCAST ATE ATE olicy action in response to an B
tant radio watch an tant radio watch D : ing a means to check users’ nts in technology and great 20 (1987). of the electromagnetic spectrum composed of the electromagnetic of RANSITION The international U.S. law mirrored the treaty law T
’ ITANIC EGULATION T R major shippingearlyin disasters20th the 6 to maintain cons leading up to the loss of life in the sinking of the RMS RMS sinking of the life in the leading up to the loss of Policymakers’ desire to maximize the benefits 4 ROADCASTERS mass markets, which created B ELEVISION ELEVISION HE T In addition to provid 7 ISCOVERY OF THE and averting 5 D 1920–1960 6-8 (2000). 6-8 (2000). 1920–1960 HE 6/21/2011 T ADIO AND AND ADIO
, TATES TATES , R ELETE S D A. Regulatory Aspects Regulatory A. The recent transition ofThe recent broadcast television from an analog to a The early age first, audio only—was of broadcasting—at a chaotic OT N NITED RCHBOLD O LOTTEN M K century, the use of wireless spectrum faced increased scrutiny from Congress. With the passage of the Radio Act of 1912, the federal government of “licensing” the use of radio first established a system spectrum under largely for reasons of the Commerce Department, maritime safety. 1910 law required radio the Wireless Act. The Ship Congress passed accident in 1909, 6. shipping a of victims of 1,200 saved the lives operator a radio actions of After the carrying ships in all U.S. be installed one hundred miles to at least equipment with a range of over fifty passengers and traveling over miles off the coast. two hundred S U 4. portion spectrum refers to the Radio A frequencies between 3kHz and 300 GHz, those best suited for communications use. Airwaves use. for communications suited best those 300 GHz, frequencies between 3kHz and radio) now HD FM, and AM, (i.e., broadcasting” as “radio of what consumers think used for a small subset of radio spectrum. compose only Titanic. of the RMS sinking in the factor contributing 5. bridge was a the operators and radio the shipboard between Lack of coordination D 2011]T from the use of the airwaves—a scarcefrom the use of periodic resource—requires important aspect of the industry present aspect of the industry important throughout its history: the high From its interests. the presence of competing the airwaves in demand for both industryinception, and government recognized power of the broadcast TV to reach of the radio spectrum. digital technical is standard but the latest p to tighten procedures for the use of in the U.S. and internationally Titanic urged changes 7. events Observers of the largely1912 in response to these concerns. of Radio Act the Congress passed radios on vessels. ActThe required all seafaring vessels nearbywith ships and coastal radio stations. negotiated in London at the International Radiotelegraphic Convention in 1912. in 1912. Convention Radiotelegraphic International at the London in negotiated rebalancing accommodation of incumbent between the technologies and the movement toward next-generation, state almost a century, the evolution of the industry has been broadcast shaped by regulation. time, full of exciting advanceme were those imposed by the state of the technology and laws of physics. Absent a regulatory structure, radio experimenters pushed the limits of the technologyprofoundlyimpacted into areas that commerce, entertainment, and the public good. Having both played a role in contributing to experimentation. Initially, the only limitatio C Y 30555_cdt_9-2 Sheet No. 58 Side A 08/09/2011 09:04:54 A 08/09/2011 58 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 58 Side B 08/09/2011 09:04:54 M K C Y PM
The 1:18 at 133-
, replaced by note 8 marked a period of supra 133, 145 (1990). (1990). 133, 145
Thomas Hazlett, . See CON the FCC in the E Hazlett,
Significant court losses . [Vol. 9 [Vol..
& 8 10
Zenith Radio Zenith These and other factors See regulatory structure for radio use. radio structure for regulatory served as a precursor to a as a precursor served 11 Hoover’s denials of broadcast licenses denials Hoover’s al government, the growing al government, , 33 J.L. occurred despite the that fact the ernment grants constituted that ng aspects of broadcast use of e commentators as the death-knell of the of the death-knell as the e commentators ectrum, and the mounting concerns of Commerce, future Hoover, president Herbert chief concern at the time.
47 U.S.C. §§ 51-63 (1912). §§ 51-63 (1912). 47 U.S.C. 12 See and weather forecasts. J. L ON TECH. HIGH & TELECOMM. ges establishing the modern federal ges establishing the 62-264, 37 Stat. 302 (codified at 47 U.S.C. §§ 51-63 (1912), 47 U.S.C. §§ 51-63 302 (codified at 62-264, 37 Stat.
6/21/2011 . The growth of broadcasting 9 id
ELETE See D The broad goals Congress defined for The broad goals Congress defined By the early 1920s, the use of radio technology had expanded so had expanded of radio technology 1920s, the use By the early OT N Hoover v. Intercity Radio Co., 286 Fed. 1003 (D.C. Cir. 1923); United States v. Zenith v. United States 1923); Cir. (D.C. Fed. 1003 286 Radio Co., v. Intercity Hoover O over jurisdiction losses that limited federal despite Court radio, strong role in shaping played a 11. The Secretary of the Department of the Court’s invalidation In particular, radio licensing. for lack of standards, and later for federal jurisdiction and later outright under the existing statute for lack of standards, chan legal hastened the See in Ill. 1926). The decision (N.D. F.2d 614 12 Corp., Radio and Labor. Secretary of Commerce to the the communication over radio regulatory powers Act delegated The 1912 10. RationalityRegulation U.S. of Broadcastthe Spectrum of Communications Act of 1934 (codified as amended in scattered sections of 47 U.S.C.)). 47 U.S.C.)). of sections scattered in amended as (codified Act of 1934 Communications associated with spectrum use were of and responsibilities that the rights commentators observe other Hazlett and 8. over interference and disruptions of the expectations of use of spectrum earlyall challenged the regulatory structure. economic value of and demand for sp for the executive branch of the feder for the executive Act, Pub. L. No. both permission to use spectrum under certain conditions, as well as as well certain conditions, under to use spectrum both permission from “interference.” certain protections rights to compliance with the legislation, the with compliance the licenses broader notion federal of the government’s ownership the airwaves. of constitutedLicensing system a of gov D 442 Communications Act of 1934 were matched by the far-reaching Communications Act of 1934 jurisdiction it granted to the agency.inception, From its the FCC regulated both market and engineeri “breakdown of the law[,]” described by som by law[,]” described the “breakdown of federal a new announcing approaches, adjudications burgeoning private market and judicial to spectrum management. approach control” and “command 9. Radio Act of 1912 did not anticipate broadcasting and that broadcast did not anticipate broadcasting Radio Act of 1912 limited to two licensing was initially frequencies—one of was which reports reserved for crop drove the passage of the Radiodrove the passage Act of 1927 legislation, and its successor which established the Federalthe Communications Act of 1934, as the regulator ofCommunications Commission (“FCC”) and broadcast other uses of radio spectrum. rapidly than 500 that more country on a single filled the broadcasters frequency. 175 (discussing the history of market mechanisms for spectrum use and rejection in favor of favor spectrum use and rejection in for mechanisms of market the history 175 (discussing theand control” approach). federal regulatory “command U.S.C.). as sections of 47 amended in scattered Communications Act of 1934 (codified 12. 30555_cdt_9-2 Sheet No. 58 Side B 08/09/2011 09:04:54 B 08/09/2011 58 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 59 Side A 08/09/2011 09:04:54 PM
appeal appeal The , Nat’l 1:18
16 15 aff’d ISTORICAL ISTORICAL H of radio spectrum ntinuing concerns); ntinuing concerns); to create any right, to create any right, Nat’l Broad. Co. v. The Impact of the FCC’s FCC’s the The Impact of
See 443 ROADCASTING ROADCASTING see also B OULETTE
R TV
remains today. In cases that ATE ATE D 301. 301. 31, 34 (1979). 34 (1979). 31, nse shall be construed nse shall be construed ment operation of radio is no closer today today no closer radio is of operation ment nce, and necessity” was not limited solely to not limited was necessity” nce, and was crucial because of co was crucial . After the FCC its “chain adopted engineering characteristics characteristics engineering d to network-station relationships and media and relationships d to network-station RANSITION ccordance withccordance the with a Act and T
’ TUDIES WNERSHIP IN S O 47 U.S.C. § J. 78, 87-88 (1951) (describing the impact of the rules (describing J. 78, 87-88 (1951)
ASE ASE L. C ALE ROADCASTERS ULTIPLE . (providing for the use of radio frequencies under a license “but a license “but . (providing for the use of radio frequencies under B M Id
HE , , 60 Y , 60 ELECTED ELECTED Congress intended unambiguously to bring radiouse S 14 see also see , Supplemental Report on Chain Broadcasting (Oct. 11, 1941), (Oct. 11, 1941), Broadcasting on Chain Report , Supplemental Nat’l Broad. Co. v. United States, 47 F. Supp. 940 (1942), 940 (1942), Supp. 47 F. States, Co. v. United Broad. Nat’l Amendment of Part 3 of the Comm’n’s Rules, 11 Fed. Reg. 33 (Jan. 1, (Jan. 33 Fed. Reg. 11 Rules, Comm’n’s of the Part 3 of Amendment OWARD Declaringuse shall person “[n]o that, any or operate See H 6/21/2011
307; 13 H. . § modified sub nom. sub ELETE Id
D . Under this Congressional and incorporating mandate, prior OT 15 N ERBERT ERBERT EVELOPMENT AND AND EVELOPMENT O M K Chain Broadcasting Rules Broadcasting Chain applied to the regulation of television broadcasting, but remained for many years a hotly years a hotly for many but remained broadcasting, television regulation of applied to the debated topic. 1946) (applying the network radio rules networks); to television 1946) (applying broadcasting determinations made under the 1927 Act by the Federal made under the 1927 broadcasting determinations theRadio Commission, FCC implemented a variety of regulatory growth ofto foster the continuing policies intended broadcasting and prevent interference between stations broadcasting” rules in 1941,broadcasting” rules regulatory the modern framework of licensing geographically broadcast stations by service, frequency, and limitationspower, including parties may hold licenses and on which procedures for denying or revoking licenses, was largely in place. under federal control to encourage in order a greater and more effective “in the publicuse of radio interest, convenience, or necessity,” while at the same time prohibiting outright private ownership of spectrum. ten years after the adoption as “network than as “network revenues have soared, broadcasters have more ten years after the adoption programs more accurately be attributed to any diminution in sustaining can number, trebled in govern and for advertising, increased expenditure rules a revamping of the than ever” but arguing H ownership were originally adopted in the Report on Chain Broadcasting, and subsequently subsequently and Broadcasting, Chain on in the Report ownership were originally adopted Broad. Co. v. United States, 319 U.S. 190, 213-219 (1943) (discussing the to the background (1943) (discussing U.S. 190, 213-219 319 States, Co. v. United Broad. and policies at the time adoption of the of the practices licensing broadcast Commission’s relate Six rules rules). broadcasting chain beyond the terms, conditions, and periods of the license”). of the periods and conditions, beyond the terms, 2, 1941), 16. Commission No. 37, 6 Fed. Reg. 2282 (May Order Broadcasting: Report on Chain rules established the market structure that challenged the FCC’s power to promulgate rules related to chain challenged the FCC’s power to broadcasting by networks of stations, the Supremeupheld Court the not the ownership thereof” so that “no such lice such ownership thereof” so that “no not the D convenie interest, with the public were “consistent 13. that reasonable regulations” “make § 302(a) to U.S.C. authority under 47 The FCC’s Act. in the Communications provisions enumerated the statutory spectrum. D 2011]T apparatus for the transmission of energythe transmission for apparatus or signal or communication by in a under and . except . . radio Congress. [,]” firmly established federal ownership of the . . license airwaves by fiat. dismissed United States, 319 U.S. 190, 217 (1943) (upholding the broad reading of the FCC’s regulatory regulatory the broad reading of the FCC’s (upholding 217 (1943) U.S. 190, 319 United States, technical the beyond power as extending
management). 14. Act of 1934, Communications C Y 30555_cdt_9-2 Sheet No. 59 Side A 08/09/2011 09:04:54 A 08/09/2011 59 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 59 Side B 08/09/2011 09:04:54 M K C Y PM
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The The Court 18 velopment of the Report of NTSC Report of NTSC 17 319 U.S. at 213-19. U.S. at 213-19. 319 see also see
. [Vol. 9 [Vol.. 20 service. The FCC formed Order 65 Setting Television Rules nt technologies, and thent technologies, and need See Nat’l Broad.Co., d on “the scientific de d on “the scientific
Amendment of Section 3.606 of the Amendment ss the technical conflicts among see also see ” system with the live transmission with the live transmission ” system granted power to comprehensive (also Vice President of General Electric see also onditions, not inconsistentonditions, law, with the Commission’s goal of a standard that could could that goal of a standard the Commission’s t simulated motion 12.5 frames (at least n FCC Chairman Fly and the Radio Manufacturers Manufacturers and the Radio Fly n FCC Chairman note 16; note at 217 (citing the statute). statute). the (citing at 217
supra The technical standards the FCC has selected 19 J. L ON TECH. HIGH & TELECOMM. first home was in the very-high first home was in frequency (“VHF”) 319 U.S. Part I.B. 6/21/2011 infra
ELETE D . Nat’l Broad. Co., Co., Broad. . Nat’l . See Technical advancement in color technologies later required the The advent of television created new challenges for regulation. for regulation. created new challenges of television The advent OT 18 19 N O on Color Standard, at 3-4. at 3-4. Standard, on Color and Regulations for Further Hearing, Dkt. No. 5806 (May 28, 1940); (May 28, 1940); Further Hearing, Dkt. No. 5806 Regulations for and the engineering of television and facilitate the engineering of television and about a full commercialization of the technology. bring 9175. Utilization of Frequencies in the Band 470 to 890 Mcs for Television Broad, 41 F.C.C. 890 Mcs for Television Broad, 41 F.C.C. 470 to 9175. Utilization of Frequencies in the Band 21, 5 (July at Comm., NTSC-G-421, Television System Nat’l Report of Final (1950); ¶ 8 1, 3 rules establishing that the Standard] (discussing Color on NTSC Report of 1953) [hereinafter NTSC’s of other history and became effective July 1, 1941 the NTSC monochrome standard television NTSC work with the FCC in developing the first monochrome between the the Discussions standard). Association Director, Dr. W.R.G. Baker focuse that a collaborative group indicated Corporation) highest standards within reach of the industry’s experts” could resolve highest standards withinthe divided opinions on industry’s experts” reach of the Stations, 6 Fed. Reg. 2282 (May 6, 1941); 6, 1941); (May Reg. 2282 6 Fed. Stations, Rules, Amendment of the Comm’n’s 148 (1952). 41 F.C.C. and Regulations, Rules Comm’n’s Service, Docket No. Broad the Television Concerning Standards Engineering & Regulations, and High Frequency Broadcast Rules Standards standard. Governing NTSC monochrome 20. the Order that adopted 30, 1941 released its April the Commission 3, 1941, On May
17. Report Chain Broad., on FCC’s flexibility in implementing in flexibility FCC’s mandate. broad its D 444 FCC to explore a new standard. In 1948, the FCC formed its JointIn FCC to explore a new standard. concluded thatwasengineeringlimited concluded FCC’s jurisdiction the the to not radio use,aspects of but instead “such rules of radio through potentialities and realize the vast promote and regulations[,] restrictions c and as may benecessary the to carry out of provisions th[e] Act.” have always reflected difficulthave always reflected balances between feasibility of existing ofstate of the art, accommodation incumbe to maximize the beneficial use of the radio spectrum. The great diversity for a “television of technical solutions per second) drove the FCC to addre companies seeking to introduce nationwide the National Television System Committee(“NTSC”) in 1940 to select a commercial commenced licensing technical standard. In 1941, the FCC broadcast television stations under adopted standard forthe committee’s black-and-white television, the NTSC Standard. of sound and moving images tha Initially, the FCC classified the licensing of broadcast television aslicensing classifiedthe FCC Initially, television of broadcast the “experimental,” mirroringnascent the state the technical of art at the time. TV broadcast’s portion of the spectrum. 30555_cdt_9-2 Sheet No. 59 Side B 08/09/2011 09:04:54 B 08/09/2011 59 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 60 Side A 08/09/2011 09:04:54
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EDERAL EDERAL sions, 41 sions, 41 F ONNECTION C EPORT OF THE THE OF EPORT R red, the number
, ision Transmis 445 note 20, at 15. note 20, at 15. Anniversary of Kukla, Fran, th ENIOR ENIOR 60 OULETTE supra The FCC would again FCC The The The FCC provisionally R 25 21 LLOCATIONS A ATE ATE , S s being conside s being D note 20, at 13. note 20, at 13. a foundation, the existing monochromea foundation, the factor even in the selection of the of the selection the factor even in Compatibility would protect the Compatibility would commendation was not backward was commendation verning Color Telev 23 RGANIZATION TO THE THE TO RGANIZATION supra O cant burdenconsumers, for the FCC RANSITION Thus, respecting consumers’ existing existing consumers’ respecting Thus, ELEVISION T
ant and highly challenging problem technical of ’ 24 T on August 30, on August 1953. , March 28, 2002, at A1. A1. at 2002, , March 28, TUDY TUDY S 39 (Mar. 16, 1959) (discussing the history of JTAC and of JTAC the history 1959) (discussing 39 (Mar. 16, ‘Mr. Television,’ Dies at 93: Comic Sparked American Love Love American Sparked Comic 93: at Dies Television,’ ‘Mr.
OST Nat’l Television Sys. Comm. for Adoption of Transmission P
. the transition to DTV. ROADCASTERS B SPECTS OF SPECTS ASH A HE evision NTSC standard. See also See OMMISSION , W C Milton Berle, LLOCATIONS LLOCATIONS Kukla,Fran and Ollie A 6/21/2011 NGINEERING NGINEERING ELETE D In the two years the color standard wa years the color standard In the two OT N OMMUNICATIONS OMMUNICATIONS ELEVISION O M K value of the investment consumers had made in the still relatively new relatively still the in made had consumers investment the of value 1953, the NTSC In December NTSC black and white TV technology. standard. a compatible adopted Recognizing thatmaking the millions of existinginsets the market obsoletewould constitute a signifi 1950, recommending that the Committeereconvened the NTSCin standard. color” a “compatible identify http://www.seniorconnectionnewspaper.com/articles/2009/kukla.asp (last visited Apr. 20, (last visited http://www.seniorconnectionnewspaper.com/articles/2009/kukla.asp at the be seen in color it could only public broadcast was announced to the the 2011). While network’s facility. 21. E 21. T C Technical (“JTAC”). Committee Advisory D 2011]T and Ollie with Burr Tillstrom Burr with Ollie and wrestle with this issue in approved a JTACapproved for recommendation a color would have that standard Affair with Small Screen with Small Affair 22. J.Y. Smith, J.Y. engineering). on television work developing studies 22. investments in equipment was a deciding equipment was a deciding in investments modern analog tel Standards for Color Television, NTSC-G-378 (July 21, 1953). The NTSC reviewed The NTSC 1953). (July 21, NTSC-G-378 Television, Standards for Color panelswork of the respective and separately the in 25 meetingsindependently and voted on the FCC with petition to file the the Chairman and directing authorizing July 21, 1953 for commercial color standard as the specification signal of its NTSC proposing the adoption Standard, NTSC on Color Report of television broadcasting. signific “devoted its efforts solely to the 11-19 and numbered 23. Panels nine with reorganized the NTSC 18, 1951 On June of specifications capable specification; signal television color possible best achieving the practical color transmission utilizing as creating a on Color Standard, of NTSC standards.” Report episode of NBC’s 25. The first broadcast of a program using the NTSC “compatible color” system was an F.C.C. 658 (1953) (discussing the improvements to the NTSC standard supporting color improvements to the NTSC the (discussing (1953) F.C.C. 658 television broadcasting). 24. Go Rules Comm’n’s of the Amendment taken advantage of newtaken advantage technologies exploiting the ultra-high frequency JTACHowever,(“UHF”) re the band. compatibleIf standard. black-and-white the existing NTSC with thepursued, have FCC would allowed thebecome standard to prior obsolete as consumers purchased color televisions that use would different spectrumincompatible standard—naturally technical an and making it possible to reclaim the occurred. VHF band as attrition marketplace in the televisions NTSC-compatible white and black of million by 1951. a million sets in 1948 to over 10 exploded from under C Y 30555_cdt_9-2 Sheet No. 60 Side A 08/09/2011 09:04:54 A 08/09/2011 60 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 60 Side B 08/09/2011 09:04:54 M K
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ELEVISION T ipulated to 2) the radio- MERICAN A developed by the time . [Vol. 9 [Vol.. ration stems from the broadcast engineering is age of radio. The ability to ISTORY OF ISTORY display of images TV using H ogy made use of techniques and .e., “TV sets”), and .e., “TV opagate and are man rategic incentives facing television eographic area in which reception
OLUMBIA 27 C science provided the technical foundations HE T
carry information had , play a role in the decision making of broadcast J. L ON TECH. HIGH & TELECOMM. DGERTON E
R. Radio applications typically evaluate “path losses” in decibels (“dB”). A (“dB”). in decibels Radio applications typically evaluate “path losses” . The more power transmitted, greater the the area in which 6/21/2011 ARY ARY 28 G ELETE , results from a variety of conditions, including spreading losses, absorption losses, and and losses, absorption losses, spreading including a variety of conditions, , results from D . See B. and Physics Engineering Wireless Major discoveries and advances of theMajor discoveries early 20thin century the To understand theTo understand and st financial A complete of television discussion First, a transmission effectively loses power as it travels from its power as it travels from its First, a transmission effectively loses OT 26 N O The radio engineering deliver techniques to the prepared moving images and sound also advanced greatly in the early manipulate radio waves to the regulatory structure congealed in the early 1930s. World War II engineering in thespurred great advances in wireless 1940s, making the technology ready for prime time. 27. Pun intended. intended. Pun 50 (2007). 27. path loss 28. as source, known from their propagate radio waves as power density The reduction of diffraction losses
D 446 for television broadcastingfor the next 75 years. Techniques for capturing made use of bothand reproducing graphical images mechanical and electronic components, but by the time of the Communication Act of 1934, the fundamental technologies necessary for modern television using a solely electrical emerged. process had already frequency (“RF”)transmitters and receivers that carry signals through the birth of the newby the early 1930s to enable the air, had evolved broadcasting industry. Theearly technol entities. areas of physics and material fundamentalengineering still apply today. These physics that fundamentals continue to stations to switch to DTV, of understand some one must the engineering and physical involved principles broadcasting. with tracks Two separate of technology, generation 1) the and television cameras and video monitors (i cameras and video television unnecessary for present purposes, but a basic explicationof three fundamental RF engineeringillustrates how considerations certain the DTV transitionstrategic technicalaspects of relevant to the are interests of broadcast entities. Each conside of how radio waves pr physical aspects carry information. power level transmitted from the source. The loss implies that the transmitter (the antenna) defines the g is possible. 30555_cdt_9-2 Sheet No. 60 Side B 08/09/2011 09:04:54 B 08/09/2011 60 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 61 Side A 08/09/2011 09:04:54
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See waves. For is frequency in f As mentioned 30 isspeed the of light Sixth Report &Order, c ations transmit in 447 terms of number of / , where encode information c = f Evaluating Coverage and Evaluating TV OULETTE R 388 (2002). (2002). 388 t both are transmittedt both are at the ) + 32.44 ) + 32.44 perties of radio f ATE ATE (
. D 10 Television stations broadcast 29 cy (for channel 51 in the UHF band) is 698 cy (for channel 51 in the UHF band) el at the lowest power the farthest rference in the VHF band, UHF rference in the VHF band, UHF ETWORKS licenses stations are allocated. VHF vided into “channels” corresponding However, because ofHowever, of the number N ) + 20log ewers in mountainous regions or areasewers in mountainous RANSITION 31 d ( T
’ 10 so be characterized in (Feb. 6, 2004) (Feb. in radio broadcasting, N ’ made use of the VHF band. Signalsmade use of the VHF in this IRELESS IRELESS through 13, and UHF st frequency and wavelength is: frequency and wavelength Longley-Rice Methodology for Methodology Longley-Rice W
is distancein km, and loss is measured in dB.
OMM d
C 3G ROADCASTERS
meters per second). meters per second). 32 , 8 B FSPL = 20log NS ’ 10 HE u OLLINS See generally OMMC C C
. 6/21/2011 ED ANIEL , F D
ELETE D & is frequency in MHz, MHz, is frequency in f Second, spectrumSecond, propagatesspace undulating through in waves. Third, techniques for manipulating (i.e., “modulating”) radio waves OT N O MITH MITH M K (approximately equal to 3 equal to (approximately Hertz (Hz, in cycles per second),Hertz (Hz, is wavelength the in meters, and signals to viewers over a wide swathsignals to viewers of frequencies. by manipulating the power levelwavelength and of radio waves to carry information exploit different pro frequency modulation and (“AM”) example, amplitude modulation (“FM”), important standards 29. The relationship between relationship The 29. highest frequen and the VHF band) is 54 MHz 30. the 2 in (for channel use in broadcast The lowest frequency currently allocated for MHz. Sixth Further Notice, as System’s the Advanced 69 and Television No. OET Bulletin of the 31. A in Appendix The requirement for higher power is discussed for UHF frequencies the “dipole factor.” Interference common expression for free space path loss (“FSPL”) using reads: reads: using path loss (“FSPL”) free space for common expression S reception ofreception Broadcast possible. signal is the typically TV transmitters of millions or thousands transmit over coverage provide and watts of square miles. hundreds waves can al same power. Radio the “frequency”), completes in a given period (i.e., undulations the wave in Hertz (“Hz”). typically measured D 2011]T The physical propertiesofwith thelength differ spectrum ofthe waves. In particular, of longer waves length (i.e., of greater“wavelength”) travel farther of shorter length than those given tha where in 1952. order an in channel allotments adopted these first The FCC Regulations, and Rules Comm’n’s of the 3.606 Amendment of Section 32. made. allotments were subsequently Several changes in 148 (1952). 41 F.C.C. band havewavelengths long that trav able to reach vi levels and are most with dense foliage. Television broadcast signals in the higher-frequency UHF band typically require more power to provide service over the same equivalent VHF signal.as an area above, TV broadcasting first channels 14 and above. common sources of significant inte broadcast signals benefit more from a interference-free environment. The range frequencies of broadcast is di to the 6 MHz increments to which broadcast over channels 2 C Y 30555_cdt_9-2 Sheet No. 61 Side A 08/09/2011 09:04:54 A 08/09/2011 61 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 61 Side B 08/09/2011 09:04:54 M K
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, Sept. 21, so-called available at available 33 ABLE C
&
. ROAD Moreover, the quality Moreover, the B
, . [Vol. 9 [Vol.. oaches to improve the improve oaches to organization”) reflect both rformance the broadcast of at pulling in UHF stations, and these considerations played a role nd audio signals digitally using antenna. The effectiveness of an the potential loss of viewers of a o signal. Informationbe can also ations. Predominant among these comprises an AM an comprises video signal 30 (at ppropriately matches a multiple of the a multiple of ppropriately matches as “digital,” as opposed to the “analog” as “digital,” as opposed Klobuchar Warns‘Cliff of DTV Effect’: Sen. Amy Klobuchar make use of both bands. nt mathematical appr nt mathematical J. L ON TECH. HIGH & TELECOMM. signals depends, among other things,signals depends, among on whether ansmissions, which gradually fade to “snow” as which gradually fade to ansmissions, John Eggerton, 6/21/2011 ELETE D . See generally . See C. Industrial Organization C. Industrial Regardless of the modulation or engineering technique used in the The market structure, conduct, and peThe market structure, conduct, OT 33 N O http://www.itu.int/dms_pub/itu-r/oth/0C/07/R0C070000590006PDFE.pdf (describing a http://www.itu.int/dms_pub/itu-r/oth/0C/07/R0C070000590006PDFE.pdf “brick wall” effect). WritesReiterate FCC, NTIA to ‘cliff effect’About DTV Concerns
respectively. broadcast An NTSC audi an FM and per second) frames D 448 using differe encoded example, other features. For or interference, resiliency to performance, TV video a encode DTV standards compression and error-correctingcompression in to those used techniques similar equipment suchconsumer electronics modern Thus, as DVD players. are referred to standards DTV Use of digitalNTSC standard. techniques makes it possible to carry more information than and with an NTSC system, higher reliability and at much lower power. wavelength of the desired signal. In particular, an antenna designed to well receive VHF signals does not work vice versa. In some cases, consumers having with antennas only a VHF the ability to receive some DTV or UHF component would lack transmissions, which may of a receiver can be even more important when overcoming certain kinds of interference or for quality demodulation of digital signals. Unlike reception of analog tr quality degrades, DTV exhibits the “digital cliff effect,” broadcast, the quality of TV receptionbroadcast, the quality is heavily dependent on the nature and quality of the TV receiver and TV antenna to receive the physicalthe antenna a size of 2008; Glenn Doel, Workshop on Frequency Planning and Digital Transmission: DVB-T Transmission: 2008; Glenn Doel, Workshop on Frequency Planning and Digital presentation), 23, 2004) (unpublished (Nov. Systems Transmission because reception is either perfect non-existent, with an abrupt or importance of the quality The greater states. between the two transition of the receiving equipment, along with the digital cliff, means that the transition to DTV is attended with broadcast station. As wediscussbelow, in the calculus of stations deciding when to switch to DTV. television industry (collectively, its “industrial regulatory and business consider 30555_cdt_9-2 Sheet No. 61 Side B 08/09/2011 09:04:54 B 08/09/2011 61 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 62 Side A 08/09/2011 09:04:54
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140 ILLER 36 1:18 ISTORY
M
H ECORDED ADIO B. R R OMPANY AW OF AW C ATHLEEN ATHLEEN L
, K s’ financial growth. 449 for broadcasters is for broadcasters AVIS D OULETTE ROADCASTING AND owners faced regarding to R B
See generally , the entity holding FCC the ROADCASTING ATE ATE B D TEPHEN Nat’l Broad. Co., 319 U.S. at 211. at 211. 319 U.S. Nat’l Broad. Co., al tools. NBC’s owner, Radio United States Early Radio History: Section 19 l radio licensee, Westinghouse S twork owners and the stations ICTURE ons. AT&T, the owner of the orks depended on the use of use of the on depended orks P see also RANSITION ATIONAL see also T ting radio station network (WEAF).
Use of radio in World War I advanced the art of Use of radio in World War I advanced the N ’ and furthered station OTION OTION
several considerations have influenced have several considerations the M Consolidation of licenses increasedthe
, Consolidationof the ownership of stations and the revenue sources 35 34 Thomas H. White,Thomas H. ROADCASTERS ID TO THEID TO ONGRESS B A C note 16, at 20; at 20; note 16, note 16, at 34. note 16, at 20, 29. 29. note 16, at 20, HE see also , http://earlyradiohistory.us/sec019.htm, (last visited Feb.22, 2010). supra supra supra supra
INDING , , , F (1999);
ISTORY IBRARY OF IBRARY A H 6/21/2011 L
exhaustive NBC File of the Library of Congress contains press releases,of Congress LibraryFile of the fillings, contains press NBC exhaustive 1. The Evolution of and the Ownership Cap the Networks OWARD OWARD OWARD IVISION ELETE ADIO NBC: D D
R ., After broadcast technologies became technologically viable, their The formation of these netw of these formation The OT N ARLY O ILES AT THE OUND M K The development of networks of stations made “chainThe development of networks of broadcasting” bybe broadcast simultaneously could possible, in which media content multiple stations. Networks in this modern sense began in 1926 with the formation of the National Broadcasting Company (“NBC”) network, System (“CBS”) in 1927. closely followed by Columbia Broadcasting potential for advertising revenue Electric, when in 1921 it added twoElectric, when in stations to its original additional facility, KDKA Pittsburgh. began with the verybegan with the first commercia popularity exploded and large capital backers began “[selling] gas stations and [buying] radio stations.” 37. The The 37. period. this from of interest items other and personnel records 34. H 34. F S considerations of structure ownership is the license, “station.” the Media ownership restrictions are a complicated area of regulatory practice, but marketTV broadcast and the decision making of entities. broadcast In this section, review the we formation of the television networks and sketch of competition a picture industry in the Understanding today. the relationships among stations D 2011]T the incentives station important for analyzing transition to DTV. 35. H its adoption; and accelerated radio considerably 35. E ET AL ET 36. H (1927). 36. telecommunications technology to connect the “chains” of stations, and the commercial relations between ne controlledthese fundament access to Corporation of America (RCA, a subsidiary of General Electric), was of theinitially unable to negotiate use high-quality voice telephone circuits necessaryconnect its stati to telephony network supporting the circuits, refused to deal with RCA because AT&T owned a compe C Y 30555_cdt_9-2 Sheet No. 62 Side A 08/09/2011 09:04:54 A 08/09/2011 62 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 62 Side B 08/09/2011 09:04:54 M K C Y PM
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40
, 18 F.C.C. 288, , 18 F.C.C. 38 . [Vol. 9 [Vol.. Report & Order Report on Chain Broadcasting, Chain Broadcasting, Report on serve the public interest by its parent organization Radio destroying the latter’s incentive to had an obligation to restrict the downstream rival downstream (RCA/NBC)as J. L ON TECH. HIGH & TELECOMM. note 16, at 35 (quoting FCC, FCC, (quoting note 16, at 35 supra , 6/21/2011 FCC, Supplemental Report on Chain Broad. 14 (1941); 8 Fed. Reg. 16,005 Reg. Fed. 14 (1941); 8 Broad. Report on Chain Supplemental FCC, OWARD ELETE D . See Not unlike its competitors, NBC’s interests and network focus were NBC’s interests and network Not unlike its competitors, FCC expressed the on ChainIn its 1941 report Broadcasting, The Commission also found that an organization operating 1940s, the FCC In the report and throughin the action subsequent promote to rules is the multiple ownership of The purpose of in order to maximize diversification of ownership diversification any undue as well as to prevent program and service viewpoint to the public interest. power contrary of economic concentration [C]ommon ownership of network and station places the network in a station places the network[C]ommon ownership of network and in a position where its interest as the conflict owner of certain station may affiliated stations. as a network organization serving its interest with will give organization The danger is present that the network preference to its own stations at the expense of its affiliates. , Dkt. No. 5060 (1941) (Washington U.S. Govt. Printing office)). Printing office)). U.S. Govt. (Washington 5060 (1941) , Dkt. No. OT 39 N O stated in a later report, 38. H 38. Economists refer to such denial of essential inputs by a vertically by a vertically inputs essential of such denial refer to Economists integratedfirm to a (AT&T) buying the its quandary by a solution to RCA found “foreclosure.” WEAF network from AT&T, thus With the newforeclose. formed NBC RCA acquisition, the with WEAF chain stations (shortly thereafter renamedthe NBC-Red and itsnetwork) existing WJZ (renamed network NBC-Blue the network). D 450 tied closely to the business strategies of its market dominance continued (“RCA”), and Corporation of America to In 1938, in draw the ire of competitors. response to a request by the its first inquiry into System, the FCC commenced Mutual Broadcasting industry, investigatingcompetitioninof the domination the broadcast the market by NBC and CBS. concern that multiple networks, such as RCA with its “two color” NBC networks, multiple networks, such as RCA could result in an unfair competitive advantage over other networks. expressed its defining viewthat it number of commonly-owned stations, and to preserving diversification in the ownership of networks and stations. (1943); Amendment of Part 3 of the Comm’n’s Rules, 11 Fed. Reg. 33 (Jan. 1, 1946). (Jan. 1, 1946). 33 Rules, 11 Fed. Reg. Comm’n’s of Part 3 of the Amendment (1943); Stations, Broadcast Television AM, FM, and Ownership of 40. to Multiple and Regulations of Rules and 3.636 3.240, Amendment of Sections 3.35, Report 30555_cdt_9-2 Sheet No. 62 Side B 08/09/2011 09:04:54 B 08/09/2011 62 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 63 Side A 08/09/2011 09:04:54 . PM
6 Fed 1:18 ,
47 C.F.R. 47 See See Naturally enough, 451 43 to expand their content filed its request to transfer and filed its request to transfer and OULETTE 16 FCC Rcd. 11, 114 (2001). Rcd. 11, 114 (2001). FCC 16 R 4.226) 4.226)
Television Broadcast Stations §
ATE ATE r new ownership, became the D effect until changes in the 1996 in the effect until changes Evaluating the Federal Communications Communications the Federal Evaluating known as “O&O”known as stations. The could hold, and networks facing this of owning and operatingof owning numerous
RANSITION Report & Order, up to the passage of the Telecommunications Act T 41
’ d RCA subsequently d RCA at former 47 C.F.R. at former
. 439 (2004) (expressing a contrary view on the need for an for on the need view a contrary (expressing . 439 (2004) but was soon raised to five. but was soon raised EV 42 Amendment of Part 3 of the Comm’n’s Rules, 11 Fed. Reg. 33 Reg. 33 Amendment of Part 3 of the Comm’n’s Rules, 11 Fed. R ROADCASTERS
B L. HE 319 U.S. at 224 (concluding “that the Communications Act of 1934 of 1934 Act the Communications “that at 224 (concluding 319 U.S. see also ARY Stuart Minor Benjamin, Stuart Minor M (1941) (codified (1941)
&
. Nevertheless, networks continued 6/21/2011 M See also 44 1998 Biennial Regulatory Review – Review of the Comm’n’s Broad. Ownership Review – Review of the Comm’n’s Broad. Ownership Regulatory Biennial 1998 2284-85 , ELETE see D , 46 W . Nat’l Broad. Co., Havingintegration noted vertical that networkof the content The changes in the regulatory environment resulted in a cap on theenvironmentcap regulatory The changes in the a resultedin 2282 OT 41 . N O M K of 1996, to Section 202 of the Telecommunications Act of Pursuant Rules and Other Rules Adopted (2000). § IV.a.1 11,066 11,058, Rcd. 1996, 15 FCC in network rule remained The dual 44. action 2001 restricted the scope of the rule. Act and FCC Telecommunications in the national ownership the years cap over 43. the changes a review of For 1944). 23, 5442 (May Fed. Reg. Multiple Ownership, 9 § 73.658(g) (2010) (prohibiting a television broadcast station from affiliating with a person or person with a affiliating from station television broadcast a (prohibiting (2010) § 73.658(g) dual or such unless stations networks broadcast of television two or more entity that maintains 8, 1996, on February or entities that, of two or more persons multiple networks are composed ABC, is, regulations (that Commission’s of the § 73.3613(a)(1) were “networks” in as defined and NBC); CBS, Fox, of The Section 73.658(g) network” rule); Amendment of “dual the (establishing 1, 1946) (Jan. Network Rule, – The Dual Rules Comm’n’s network operations ofnetwork until stations, albeit not Blue network of its NBC challengingunsuccessfully enforce its authority to the FCC’s new policies. The Blue network, thereafter unde third independent national network under the moniker American Broadcasting Company (“ABC”). number of stations a givennumber of stations entity At first, the cap to choose which O&Os to keep. limitation were forced was set at three stations, offerings throughout “affiliate” relationships the nation through with Reg ownership cap). ownership cap). designed to correctauthorized the Commission to promulgate regulations the abuses disclosed back to dating discussions After internal NBC broadcasting.”). of chain by its investigation NBC Blue operations teams in 1939, sales Blue and Red of the NBC 1932 and the separation time by the Company” created “Blue Network newly been made independent in a already had an Supreme Court rendered its decision, October 12, 1943. network that the FCC approved on the assign 42. Experimental Governing Rules and Regulations the networks focused on establishingthe networks focused interests ownership in the major TV markets, where they continue to hold their O&O stations Intoday. addition, mergers between networks or the holding of more than one network by an entity, known the as network” “dual rule, was also prohibited. 291 (1953). 291 (1953). for the is Good for Broadcasting What’s Bad Cap: Ownership Television National Commission’s Country D 2011]T criticism of O&Os by led RCA the FCC to divest station ownership and high-power stations. Suchhigh-power stations are distributor with the broadcast stations was firmly established, the FCC FCC the established, firmly was stations the broadcast with distributor criticized the networks’ practice C Y 30555_cdt_9-2 Sheet No. 63 Side A 08/09/2011 09:04:54 A 08/09/2011 63 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 63 Side B 08/09/2011 09:04:54 M K
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As 46 Report Report 1:18
47 , 100 F.C.C.2d 17 , 100 F.C.C.2d casting, entry of t no more than five , 43 F.C.C. 2797 (1954). (1954). F.C.C. 2797 , 43 . [Vol. 9 [Vol.. Memorandum Opinion & Memorandum Order FCC differentiated the FCC differentiated “TV-top or a converter” Report & Order Report & Order Report Comm’n’s Broad. Ownership Rules and and Rules Broad. Ownership Comm’n’s dcast the network’sdcast programming ntinued swell after World to War than 25 percent of the national r case of a new broadcast technology ntage of households able to view a engineering differences. The value of engineering differences. newly available for broad newly available chnology shortcomings were addressed. chnology shortcomings , 23 FCC Rcd. 2010, 2084 ¶ 142 (2007). (2007). ¶ 142 2084 Rcd. 2010, , 23 FCC J. L ON TECH. HIGH & TELECOMM. The numerical limit on the number stations was of However, the FCC provided tha 49 45 , IMDB (1989), http://www.imdb.com/title/tt0098546/ (last visited Mar. 1, (last visited Mar. 1, http://www.imdb.com/title/tt0098546/ , IMDB (1989), The next year, the higher cap was limited by an “audience 6/21/2011 48 Amendment of Section 73.3555 of the Comm’n’s Rules Relating to Multiple Multiple Relating to Rules Comm’n’s of the of Section 73.3555 Amendment Amendment of Section 73.3555 of the Commission’s Rules Relating to Multiple to Rules Relating Commission’s of the of Section 73.3555 Amendment UHF All-Channel Receiver Act (“ACRA”), 47 U.S.C. § 303(s) (1964). (1964). § 303(s) 47 U.S.C. Receiver Act (“ACRA”), All-Channel Implementation of Sections 202(c)(1) and 202(e) and of the Telecommunications Act Implementation of Sections 202(e) 202(c)(1)
ELETE See D . See . See . See . See As demand station licenses for co The next change in the national television broadcast ownership OT 49 47 48 50 N O (1984). (1984). Stations, Broadcast AM, FM and Television Ownership of eliminated in 1996 and the audience reach cap was raised to 35 percent. reach cap was eliminated in 1996 and the audience ownership restrictionsUHF for VHF and channels in order to promote spectrum development of the progressednew UHF stations slowly. UHFstations were often viewed as even after te VHF inferior to VHF stations would be allowed. WhileVHF stations would the viewing audience. reach cap,” by which the perce network’s O&O could be no more culture. 46. in popular lampooned been has culture and technology, management, UHF station 2010). Stations, Broad. AM, FM and Television Ownership of Stations, Broad. Multiple Ownership of Television 45. to Relating Regulations Rules and the Comm’n’s of Section 3.636 Amendment of independent independent stations. with stations contract These affiliated a network agreement a franchising under to broa Act of 1996, to Section 202 of the Telecommunications Pursuant Other Rules Adopted D 452 ownership and management an independent maintaining content while structure. are attributed stations UHF disadvantages, their technical Due to (1985). 74 100 F.C.C.2d purposes the cap. 2006 they can reach for of computing with only half of the audience Review—Review of the Regulatory Quadrennial on Reconsideration Order & & Order discussed above, a UHF broadcast requires more power than a VHF broadcast requires more power than a UHF a discussed above, broadcast, in other addition to until 1964 (when UHF because, wasUHF station ownership also lower tuner technology became required in all TV receivers), consumers had to a buy a new antenna and either purchase compatible As anothe TV receiver. requiring consumers to upgrade their home electronics equipment, UHF 2009 U.S. DTV transition. broadcasting was an exemplar of the II, leading to the opening up of spectrum in the band UHF for broadcasting the FCC use, the relaxed ownershipseven to restriction stations in 1954. rules was in 1984, when the common ownership of 12 stations was rules was in 1984, when the common permitted. 30555_cdt_9-2 Sheet No. 63 Side B 08/09/2011 09:04:54 B 08/09/2011 63 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 64 Side A 08/09/2011 09:04:54 PM
, 11 1:18
Order , 18 FCC FCC , 18 55 (2007). 55 (2007). , http://en- Television: How the Television: The broadcast the total number of the total
industry for the for the industry 54 See 453 IELSEN YNDICATION butwas reduced by S
51 g revenue is driven by g revenue & OULETTE R , N ATE ATE
D 52 to measure the viewership of a television of a television the viewership to measure d Pursuant to Section 202 of the of the Section 202 d Pursuant to when to transition to DTV,when to since for the stations as they switch to for the stations as represents one percent of ROGRAMMING ROGRAMMING O&O in the statistical regression we r point of Nielsen Media Research the lost audience, advertising revenue P RANSITION
T
’ TV e locus of the decision-making. Managers Managers locus of the decision-making. e although more recently the industry is and that advertisin and that 53 k formation in the broadcast k formation Report & Order & Notice of Proposed Rulemaking Order & Report information on the viewing behavior of households and households of viewing behavior the on information rcial is likely to be viewed). ROADCASTERS B HE CONOMICS OF E
, AGAN 6/21/2011 2. of Current Organization the Industry 2002 Biennial Regulatory Review—Review of the Commission’s Broadcast Broadcast Commission’s of the Review—Review Regulatory Biennial 2002 Consolidated Appropriations Act, Pub. L. No. 108-199, tit. VI, § 629, 118 Stat. 118 Stat. tit. VI, § 629, Act, Pub. L. No. 108-199, Appropriations Consolidated ELETE D . See . See To understand is at stake what The import of networ The import OT 52 51 N O M K Numbers Come to Life: Numbers Panels individuals through paper viewing diaries and electronic metering equipment in selected in and electronic metering equipment paper viewing diaries through individuals homes. Regardlesshousehold of method, each a week’s in Nielsenabout the provides panel and May November, February, of months “sweeps” the during information viewing worth of July. In some diary markets, additional months are surveyed as well. television households in the relevant geography (the nation or a local market, depending on a local or relevant geography(the nation in the households television collects the context). Nielsen program or station. A Nielsen “ratings point” “ratings A Nielsen station. program or Rcd. 13,620 (2003). Rcd. 13,620 (2003). 3, 99-100 (2004). 53. standard the industry are Nielsen ratings of 1996 (National Broadcast Television Ownership and Dual Network Operations), Network Operations), Dual and Ownership Television Broadcast (National of 1996 In 2003, the cap briefly rose to 45 percent, to 45 rose cap briefly the In 2003, D 2011]T (1996). FCC Rcd. 12,374 Adopte Rules Other and Rules Ownership 1996, Act of Telecommunications Congress to 39 percent shortly thereafter. shortly percent to 39 Congress shifting to more direct measuresimpressions” of “audience (i.e.,how many times the comme 54. SNL K SNL Mar. 1, 2010). visited (last us.nielsen.com/tab/measurement/tv_research 54. television industry has bled viewer share television industry has bled viewer to cable over the years. saw their CBS, and NBC) (ABC, BigAlthough the Three networks in 1986 to 27 percent in 2006, with share of viewers 70 percent fall from cable television picking up most of such decisions were made at the corporate level of the network. Affiliatedlevel of the at the corporate were made decisions such stationsthe not owned by networkand otherindependent stations,on more leewaythe other hand, had in choosing their transition timing. The distinction between the types of stations implies that it is important to control for whether a station is an V. perform in section DTV broadcasting, are that station revenue comes the most salient facts advertising, primarily from transition decisions concerns th decisions concerns transition of television O&Os stations that are of a network generally were not free to make their decisions own regarding viewership. Advertising in broadcast television markets has traditionally been priced by CPP, the cost pe Company rating “points,” C Y 30555_cdt_9-2 Sheet No. 64 Side A 08/09/2011 09:04:54 A 08/09/2011 64 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 64 Side B 08/09/2011 09:04:54 M K , C Y PM
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note 49, ¶ Part of the supra 55 nue, not just the season just the nue, not . [Vol. 9 [Vol.. by increasing the minutes DVD sales, and video on no network can own twono network can 62 Nearly all ofNearly this amount is s. Taking a stake in a series 57
series to broadcast stations. Repurposing Repurposing stations. broadcast series to 61 there are more than seven other Cable TV Losing 1 Million Customers a Year, 1 Million Losing Cable TV (May 22, 2009, 9:29AM), 9:29AM), 2009, 22, (May one of not in the top the stations is “aftermarket” revenue as well as from
56 the industry press). the industry press). (The figure includes all ad reve (The figure includes
EGISTER Most TV—Broadcast or Cable—Saw Ad Revenue Fall Last Year Tamara Chuang, R J. L ON TECH. HIGH & TELECOMM. See note 54, at 59. The networks first entered the note 54, at 59. The networks video on demand note 54, at 5. note 54, at 5. note 55 In the local markets, the (and therefore theviewing supra supra 60 , , (Feb.22, 2010),http://adage.com/mediaworks/article?article_id=142244 supra supra The market share ofThe advertising revenue was 27 percent OUNTY 58 GE AGAN C AGAN A 6/21/2011 K K
The aftermarket revenue from a hit series is estimated to The final 3 percent of advertising revenue earned by major networks in 2009 went 2009 went networks in major by revenue earned of advertising 3 percent The final at 5; Brian Steinberg, Steinberg, Brian 5; at
63 implying that there are four roughlyimplying competitors at equally sized ELETE Id. 59 D . Id. . Id. . Id. In order to spread their revenue sources wider, networks also own A network sells advertisingA network all of its to be aired on affiliated stations, OT 60 59 58 N RANGE DVERTISING O shares in some of their programming serie enables the network to profit from initial advertising sales. The additional revenue sources include broadcast syndication fees (domestic and international), “repurposing” fees from channels, cable and direct broadcast satellite whether it owns the station or not.it owns the station whether revenue for the In 2009, advertising $21.9 billion. networks totaled five largest for ABC, 29 percent for CBS, 20 percentfor ABC, 29 percent FOX, and 20 percent for for NBC, http://gadgetress.freedomblogging.com/2009/05/22/cable-tv-losing-1-million-customers-a- SNL year/13701/. 56. A O (citing figure from Kantar Media). Some of the market share lost by broadcast TV migrated to from Kantar to broadcastTV migrated of(citing Media). Somethe figure shareby market lost as Verizon’s such providers, broadband from services and programming satellite direct broadcast U-verse. FIOS and AT&T’s the national level. four in terms of audience share, and four in terms of audience share, and independent stations also in the market. stations in the same market unless advertising vary, but revenue) shares may 55. for the Big Three did not begin to fall until after 2006. until to fall not begin did Big Three for the D 454 to CW. 61. 2010 (2007), Rcd. 23 FCC Regulatory Review, 2006 Quadrennial SNL as cable. such modality broadcast format another from the to refers to moving content 63. “upfront’ commitments often cited in “upfront’ commitments 87. 62. a of “reruns” licensing means Syndication market on a large scale around 2006 by selling programs on iTunes. on iTunes. programs by selling 2006 scale around market on a large 57. Steinberg, 57. generated by advertising, sales of broadcast although some of the network revenue also from ads sold for programs comes that are streamed for 2009 was about online. The figure percent lower than it was the 8 previous year. reason for the maintained levels of advertising of levels maintained for the reason that is revenue the lost viewing share have responded to networks of advertising each viewing hour. demand. 30555_cdt_9-2 Sheet No. 64 Side B 08/09/2011 09:04:54 B 08/09/2011 64 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 65 Side A 08/09/2011 09:04:54
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(Aug. 1:18
EDIAWEEK ABLE C
, M While local , even those &
. 67 ROAD 455 vertising appears in large , B spots are often local spots are 3 (1998) (for discussion of how how of discussion (for 3 (1998) OULETTE
. R The Substitutability of Network and revenue was for stations oses much less ofmuch less oses the whole ATE ATE CON stations. Stations stations. D E
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’ , 37 Q.J.
64 DTV ROADCASTERS B note 54, at 61. note 54, at 61. note 54, at 16. note 54, at 16. Study: Station Revenue Up 5.2% in 2010 Study: Station Revenue HE note 55. Local spot advertising (about 55 percent of total spot spot spot advertising (about 55 percent of total note 55. Local Report: TV Stations Finding Multiple Revenue Streams Revenue Multiple Finding TV Stations Report: supra supra , , B.D. McCullough & Tracy Waldon, supra AGAN AGAN WITCH TO 6/21/2011 K K
S As with the networks, advertising ELETE HE 66
D . See generally . See 69 A. The Development of the DTV Standard More important for the More important work empirical below is the advertising Since the development of the engineering structure and regulatory OT 65 N O M K stations revenue from retransmission also earn some agreements with cable television companies and online advertising, advertising broadcast still makes up about 97 percent of the average station’s revenue. down in 2009, falling 17 percent from the previous year. 17 percent down in 2009, falling 2007. Protecting this dwindling revenue stream was one of the prime concerns to switch to DTV. The same is of station managers considering when true of the which are a profit center for the network O&O stations, have only small profitnetworks. While the major networks margins, O&O stations have profit margins of Revenue earned directly by theRevenue earned directly advertising stations from is roughly equal byto the amount earned In 2009, sales of the networks’ own ad sales. local and national stations an estimated garnered spot advertising $24.1 billion. (Feb. 8, 2010), http://www.mediaweek.com/mw/content_display/news/ http://www.mediaweek.com/mw/content_display/news/ 2010), (Feb. 8, SNL (citing a study by SNL Kagan). local-broadcast/e3ief7f94880dc0982e7611a33c5d5ad05c 69. 64. SNL 64. revenue series. for non-hit account as 90as much for percent of total the (undiscounted) revenue revenue aftermarket although stream, comp D 2011]T II. T and why the FCC sought to ensure the survival of an independent advertising market outside advertising market outside independent an of the survival ensure to sought FCC why the and Steinberg, networks). the control of the 66. advertisers, but even when advertisers, but even not, the network with which a station is the rates for spot advertising. allowed to control affiliated is not revenue to individual accruing broadcast with a network,affiliated airtime—”spot own commercial offer their Buyers of television purchase. advertising”—for
68. Katy Bachman, Bachman, http://www.broadcastingcable.com/article/327843-Study_Station_ 18, 2009), Katy (citing a study by Kagan). SNL Revenue_Up_5_2_in_2010.php?rssid=20068 68. National Spot Television Advertising National Spot Television advertising) appears only in a station’s own station’s in a only appears advertising) of a instead mightnational spot portions of the country. A company with a choose to advertise to national network commercial because it wants 67. Michael Malone, Michael ad, for example. 67. C Y 30555_cdt_9-2 Sheet No. 65 Side A 08/09/2011 09:04:54 A 08/09/2011 65 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 65 Side B 08/09/2011 09:04:54 M K
Y ’ 73 C Y PM
OL 1:18 UTURE
F , 22 P , 22 ECHNICAL ECHNICAL YSTEMS OF YSTEMS T S NHK (2002),
, sh and Japanese). In the 1980s, 72 OURCE OURCE S (1969) (discussing the the (1969) (discussing ATTLE FOR THE THE FOR ATTLE B nce and Technical Research nce and Technical Research INEMA . [Vol. 9 [Vol.. NTERNATIONAL NTERNATIONAL broadcasting company, HE I gave greater flexibility to ONTROL T
The Evolution of TV , C :
C U.S. consumer electronics U.S. consumer electronics nt and devices, led to a 20- nt and devices, Furthermore, the significant were already coming to be viewed as be viewed were already coming to 71 74 ISION thrived in three U.S. for the see also see AND V , DTV in the U.S. also includes HDTV. includes HDTV. also DTV in the U.S. for spectrum the and technological ATIONAL AND AND ATIONAL -of-tv-en/index-e.html (Engli example of the resurgence of Japanese example of the resurgence of Japanese nts to broadcast television,nts to broadcast the NTSC N
, Politics of DTV EFINING technologycreated opportunities that to PERATION D The Politics of HDTV in the United States United the HDTV in The Politics of
, O
MERY High Definition Television: New World Order of Fortress Fortress of Order World New Television: Definition High , E
B. J. L ON TECH. HIGH & TELECOMM. RINKLEY of national security. use of radio spectrum, ISTORY at this time and the NHK Scie B H (“NHK”), Japan’s national ALTER ALTER The History and OEL
J The switchDTV to realized in dramatic improvements HEIR HEIR 70 T , (1998) (some observers argued that crucial areas of TV R&D in the U.S. the of TV R&D in that crucial areas (some observers argued (1998) , 6/21/2011 Kenneth D. Springer, Kenneth D. 4 (2002); Jeffrey A. Hart, 4 (2002); ELETE 213 (1994); W (1994); 213
D . See generally . See generally . See . See J.
In the mid-1980s, Japanese electronics firms demonstrated high- firms demonstrated Japanese electronics In the mid-1980s, . ELEVISION OT 72 73 74 T N O ULLETIN ROADCASTING TUD broadcasters, and raisedqualitybroadcasters,and the televisionthe of experience for recountsviewers. This section the of the transition. history definition TV (“HDTV”) technologies. the efficiency of the Besides reasons of industrial policy, someBesides reasons of industrial policy, commentators (as well as the for a homegrownU.S. Defense Department) also advocated HDTV standard for purposes Nippon Hoso Kyokai and electronicsofpassingportend that appearedR&D the to technological leadership from U.S. firms to overseas competitors. began broadcasting their HiVision HDTV system, known in the U.S. as encoding).sampling The popular MUSE (Multiple sub-Nyquist and academic press used MUSE as an analog standard remained largely unchanged into the 1980s. By then, into the 1980s. largely unchanged remained analog standard were already the forces of change however, unleashed. The convergence the increasedof two factors, demand advanced television conte opportunities for year process that culminated in the cessation of analog broadcasting on June 12, 2009. B S B bring dramaticquality improveme L. Pub. of 2009, Act was enacted prior to the enactment of the DTV Delay (2008), Stat. 5121 70. 122 110–459, L. Act, Pub. Emergency Readiness Flash and The Short–term Analog changed the which U.S.C.), of 47 scattered sections in Stat. 112 (codified 123 No. 111-4, June 12, 2009. February 17 to nationwide transition deadline from an by definition than that provided picture quality refers to a higher HDTV synonymous. two HDTV and DTV, the need not be Although the public often conflates 71. involved MUSE, proposals, including HDTV NTSC(-like) standard. Many of the early adopted for standard The ATSC systems. analog quarters of a century. Six of those decades were under the NTSC color under were century.of a quarters those decades Six of in Despite advances standard. for broadcast television,for broadcast the industry D 456 http://www.nhk.or.jp/strl/aboutstrl/evolution history of Japanese broadcast technical innovations); broadcast technical innovations); of Japanese history OF were beginning to erode Laboratories (“STRL”) and other Japanese institutions and institutions Japanese Laboratories (“STRL”) other video technologies). platforms of modern the technology R&D centers for strong engineering firms, the 1960s with from strong competition since already weakened a new challenge.Japanese firms, viewed HDTV as 30555_cdt_9-2 Sheet No. 65 Side B 08/09/2011 09:04:54 B 08/09/2011 65 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 66 Side A 08/09/2011 09:04:54
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AND AND B 1:18
NALYSIS NALYSIS In its A 78
, (1983). (1983). ONFLICT IN IN ONFLICT C declined to AWIL 77 ELEVISION T T
RADE RADE ARKETS T
M : 457 velopment a North a velopment UHF ICTOR V HOM OBILE OBILE communications Union, advises advises Union, communications W OULETTE M R The ATSC initiallyThe ATSC urged 75 ATE ATE . See . See also AND AND service. Broadcasters showed D L ASHING ASHING s to satisfy demand for spectrum for spectrum demand satisfy s to B EN Their Impact Upon the Existing Television Television Their Impact Upon the Existing HARING OF THE S ’ T S d portions of the allocated broadcast d portions of the allocated broadcast movement to de to movement the Society of Motion Picture and Television Society of Motion Picture and the HO OP OP RANSITION T T
W ’
, , 101 F.C.C.2d 852 (1985) (the proceeding was opened opened was proceeding (the 852 (1985) F.C.C.2d , 101 URTHER , 11 FCC Rcd. 17,771 (1996) [hereinafter ATS 4th]. ATS 4th]. [hereinafter 17,771 (1996) Rcd. 11 FCC , use with advanced television technologies. advanced television use with F . 1309, 1323 (1993). (1993). . 1309, 1323 240 (1991). 240 (1991). UHF television broadcast service. YSON US y recognized standard for HDTV. T advanced television system replace to the aging B d Nations’ International Tele International d Nations’ L ’ mmunications standards. mmunications ROADCASTERS B NT I HE ERVICES IN THE Further Sharing of the UHF] NDREA NDREA Y
’ S NDUSTRIES I OL D’A P
OSSIBILITIES FOR OSSIBILITIES FOR OBILE & P driven by European protectionist concerns, by European protectionist driven M Advanced Television Systems and Systems Advanced Television 6/21/2011 , Fourth Report & Order & Report , Fourth AURA AURA 76 AW AW Further Sharing of the UHF Television Band by Private Land Mobile Radio by Private Land Television Band of the UHF Sharing Further L See AND AND ELETE Notice of Proposed Rule Making Notice of Proposed ECHNOLOGY ECHNOLOGY L D , 24 L . See . See Tandem to industry’s growing interestTandem to industry’s successor to in an advanced In 1982, diverse broadcast industry interests came together to form came together to interests industry diverse broadcast 1982, In -T ECHNICAL ECHNICAL OT 77 78 T N IGH O M K bands as potential space for new users, the FCC issued a notice seeking sharing the private land between comment on opportunities for further adopt MUSE as a standard, closing the adopt MUSE as a book on the possibility of MUSE becoming internationall an with physical properties suitable for terrestrial radio users such as public users) and delivery and dispatch safety (police and emergency services companies. Having unuse identified NTSC, the FCC was exploring option the FCC NTSC,
in response to various petitions and after a 1983 report by the FCC’s Office of Science and Science and Office of FCC’s by the report and after a 1983 petitions to various in response Technology) [hereinafter Services, North American standard. NTSC television American HDTV standard. HDTV standard. American the Advanced Television Systems Committee (“ATSC”) developto a voluntary an standard for adoption of the MUSE standard, adoption of the but interests other U.S. broadcast which would with the NTSC standard, opposed its incompatibility other technicalto channel allotments and pose require changes Internationaldifficulties. The Consultative Radio Committee (“CCIR”), proposal, the FCC described its goal of making additional spectrum available to land mobile services in areas where it was most needed, with minimal impact on television broadcast significant interest in the proceeding, declaring strong intentions to usesignificant interest in the proceeding, the frequencies identified for H U.S.A.? technical incompatibilities between the Japanese MUSE NTSC and the lent impetus also standard to the D 2011]T Association, the the Electronic Industries (“JCIC”), composedof InterSociety Coordination anotheron industry group, the of Joint Committee out ATSC was formed The 75. of Broadcasters, the Institute of Electrical and Electronics Engineers, theAssociation National Association, andNational Cable Television Engineers. Broad. Service. Consultative Committee (CCIR, from the French The International Radio 76. Unite the of a section acronym), on spectrum and allocations co BY THE 79. could the action Rivera stated that Henry statement, Commissioner concurring his In OF mobile services and the C Y 30555_cdt_9-2 Sheet No. 66 Side A 08/09/2011 09:04:54 A 08/09/2011 66 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 66 Side B 08/09/2011 09:04:54 M K
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In D 81 1:18
note 75 ICHAEL ICHAEL (1996) (1996) M supra (2d ed. 1999) ed. 1999) (2d
The FCC IGITAL 82 4th,
D commendation ESEARCH ESEARCH Television Broadcast Broadcast Television
.
R proposed in May 83 see generally ELEVISION T e, several former ATV e, several former ATV Further Sharing of the UHF, Further Sharing proposal. The Japanese . [Vol. 9 [Vol.. Momentum for a new Momentum See OLICY ing on a re NALOG VS NALOG 80 P A IGITAL D
: features of each system. 11 FCC Rcd. 6235 (1996) (proposing (proposing 6235 (1996) Rcd. 11 FCC nter, General Instrument Corporation, nter, General Instrument Corporation, Impact on the Existing Impact on the Existing new standard, station management UIDE TO UIDE CIENCE CIENCE S the FCC formally G a demonstration of the feasibility of a a demonstration of Digital techniquesencoding for and 84 HE RANSMISSION
, of the best ATS T T
, Zenith Electronics Corporation. ATS Corporation. Electronics Zenith superior to an analog on superior to an analog UNNO the service’s spectrum needs. N J. L ON TECH. HIGH & TELECOMM. Systems and Their Impact Upon the Existing Television Broad. Broad. Television Impact and Their the Upon Systems Existing tween NTSC and ATSC standards); tween NTSC and ATSC standards); IGNAL S
ESCATORE 2 FCC Rcd. 5125 (1987). 5125 (1987). Rcd. 2 FCC P note 75 (adopting ATSC as the new DTV standard). new DTV standard). as the ATSC note 75 (adopting M. incorporating the best ARK supra M
& 6/21/2011 ICHARD ELETE Notice of Inquiry, Notice of D Fifth FurtherRulemaking,Proposed Notice of ACATS and the ATSC began collaborat ACATS and the The pace of the march toward HDTV quickened in July 1987, when 1987, in July quickened HDTV toward march pace of the The The ATSC standard for DTV represented a significant enhancement enhancement a significant for DTV represented standard ATSC The note 78 (concurring Statement of Commissioner Henry Rivera). Commissioner Statement of note 78 (concurring OT N ELECOMMUNICATIONS ELECOMMUNICATIONS O ILBERGLEID (discussing the differences be (discussing the decoding broadcasts offer improvement of the qualityof decoding broadcasts offer improvement reception and of resilience to interference. Under the competitors formed a “Grand Alliance” in May 1993 to collaborate on a in May 1993 to collaborate competitors formed a “Grand Alliance” single standard Lucent (now AT&T of Alliance was formed with the participation Grand Research Ce David Sarnoff Technologies), 81. American Corporation, North Philips Electronics Institute of Technology, Massachusetts Electronics and Thomson Consumer T S stifle the potential of the low-power TV (“LPTV”) service and argued that insufficient time time service and argued that insufficient stifle the potential of the low-power TV (“LPTV”) to determine been afforded had Service, supra 80. Their and Television Systems Advanced D 458 (discussing the technical advantages of digital television technology). of digital television technology). advantages (discussing the technical digital TV solution) declared that thedigital TV have to would new ATS standard of existing the resolution signal at least twice HDTV support a genuine channels. on different “simulcast” of being images and be capable television analog-based MUSE standard was an early leader in these trials until trials these in leader early was an standard analog-based MUSE 1990, when the FCC (on seeing for technical With a decision specifications for ATS. in early 1993 that a be digital standard would adopted it with some modifications in December 1996. adopted it with some modifications standard further accelerated with the first congressional with the first further accelerated standard hearing on an open ACATS call for 1987, and the held in October HDTV, competition for development 82. Advanced Television Advanced n.10. ¶ 4 at 17774, 82. Service, 83. ATS 4th, ATS DTV standard). as the ATSC 83. 84. R 84. 1995 as the new terrestrial broadcasting ATS standard. ATS 1995 as the new terrestrial broadcasting November 1995, the ACATS recommended the Grand AllianceNovember 1995, the ACATS prototype DTV standard, which the FCC issued its First Notice of Inquiry First Notice its issuedthe FCC Service Television Advanced on Television Advanced on Advisory Committee the formed and (“ATS”) Service (“ACATS”) to review the technicalissues provide and a ATS standard. a new for recommendation to the aging NTSC standard and held numerous benefits for broadcast benefits for broadcast held numerous and NTSC standard the aging to stations transitioning to digital. 30555_cdt_9-2 Sheet No. 66 Side B 08/09/2011 09:04:54 B 08/09/2011 66 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 67 Side A 08/09/2011 09:04:54
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see also 1:18
TANDARD ROADCAST ROADCAST S B
86 ATSC
., 459 NC ERRESTRIAL ERRESTRIAL I T
on and high-definition gradually over the decade and gradually over the decade ., OULETTE R OMM ATE ATE C D by the ATSC standard, allowsby the ATSC
. YS channels ofchannels digital programming S oadcast users and to establish a oadcast users nnel and power assignments that mers using an older NTSC receiver HD receiver to purchase a converter box or ROTOCOL FOR P RANSITION ork. ATSC also allows the carriage of also allows the carriage ATSC ork. reallocate broadcast spectrum among T
’ while presenting users with a stable set ofwith a stable users presenting while ACRA, 47 U.S.C. § 303(s) (1962) (implemented by 47 by (implemented (1962) § 303(s) U.S.C. 47 ACRA, set after the DTV transition. ELEVISION See T e requirements were phased in e The FCC calculated the power necessary to such as standard definiti Systems and Their Impact Upon the Existing Television Broad. Broad. Television Impact and Their the Upon Systems Existing ROADCASTERS 87 , 12 FCC Rcd. 14,588 ¶ 12 (1997) [hereinafter ATS 6th]; 6th]; ATS [hereinafter ¶ 12 (1997) Rcd. 14,588 , 12 FCC NFORMATION B I HE DVANCED DVANCED a. Existing License Holders Allocation License a. Existing A YSTEM YSTEM Multicasting, also enabled also enabled Multicasting, S 85 HE 6/21/2011 1. Requirements and Spectrum Changes in Power T (PSIP) (2009) (containing more details on the Virtual Channel Table). Channel Table). on the Virtual more details (containing (PSIP) (2009) ELETE Sixth Report & Order Sixth Report D . See ABLE B. The Long, Slow Transition March toward In 1997, the FCC adopted a DTV Table of Allotments that In 1997, the FCC adopted a DTV With the ATSC standard in place by the end of 1996, the pieces standard in place by the end of 1996, With the ATSC C OT 85 N O ROGRAM AND AND ROGRAM M K had to procure a “digital converter box” and possibly a new antenna to antenna a new possibly box” and converter “digital a procure to had continue to use the television video. However, the many benefits come with a transition cost. As was the cost. As was the transition a with come benefits many However, the video. UHFwith early television, consu case 47 C.F.R. § 73.622 (1997) (the table of channel allotments was released as appendix B to the B to the appendix (the table of channel allotments was released as (1997) § 73.622 47 C.F.R. Order). AND station managementofferseveral to for required formerly spectrum of amount same the using simultaneously one analog program. Some stations tookof advantage multicasting to than one netw affiliate with more diverse kinds of video, admitted the possible need for the owner of an need for the owner of admitted the possible post-transition. TV tuner to watch 87. Advanced Television Advanced (1989)). 15.117(b) and 47 C.F.R. (1989) C.F.R. 15.115(c) 87. Service, was installed, th an NTSC tuner 86. While new TV receivers sold after 2007 were required to include an ATSC tuner if P
can select actual channels actual can select flexibly of frequency actual change the can management Thus, channels.” “virtual tuning of the adjust the to ever needing consumer the without 2” “channel television set. D 2011]T replicate a station’s existing analog grade B broadcast contour with a employed a “service replication/maximization” approach to provide existing broadcasters with DTV cha deadline for stations to cease analog broadcasts and relinquish their licenses to excess spectrum. would replicate the quality and geographic area covered by their existing NTSC analog license. were in place for the FCC to non-br and new, existing broadcast C Y 30555_cdt_9-2 Sheet No. 67 Side A 08/09/2011 09:04:54 A 08/09/2011 67 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 67 Side B 08/09/2011 09:04:54 M K
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6th,
Fifth Fifth The 1:18 90
ATS . 137-143 . 137-143 Advanced Advanced See Memorandum ROAD see also B ion Broad. Service, Service, ion Broad. Understanding Television’s , 13 FCC Rcd. 6860, ¶ 16 16 ¶ 6860, Rcd. FCC 13 , . [Vol. 9 [Vol.. came relevant for the power RANSACTIONS ON O’Connor, transition, when feasible. transition, when feasible.
T
a single 6 channel. MHz ters, the FCC noted that some to the Commission”); to the Commission”); nnels as fungible. Advanced Television nnels as fungible. th stations transitioning to UHF would differ entirely from either , R.A. only made available to existing broadcasters. to existing only made available the Existing Televis Existing the Budget Act of 1997, Pub. L. No. 105-33, § 3003, 11 11 3003, § 105-33, No. L. Pub. 1997, of Act Budget BC-14 IEEE Existing Television Broadcast Service, Television Broadcast Existing interference between stations and other between stations interference See generally see also see J. L ON TECH. HIGH & TELECOMM. channel at the end of the channel at the end of licensee be surrendered note 87, at 14,605 ¶ 30 (because broadcasting on the same channel in on the (because broadcasting ¶ 30 at 14,605 note 87, supra In its power calculations, the FCC attempted to balancepower calculations,its to FCC attempted the In 88 , 12 FCC Rcd, 12,809, 12,849-50 ¶ 97, 12,815 ¶ 13 [hereinafter ATS 5th]. ATS 5th]. [hereinafter ¶ 13 ¶ 97, 12,815 12,849-50 , 12 FCC Rcd, 12,809, note 87 at 14,630 ¶ 90. As discussed in more detail below, many stations in in stations below, many detail in more As discussed ¶ 90. note 87 at 14,630 6/21/2011 In fact, theofmajority stations would full-power VHF 47 U.S.C. § 336(c) (2000) (requiring “that either the additional license or the license or additional the “that either (requiring (2000) 336(c) § U.S.C. 47
Each eligible full-power broadcaster was provided a second was provided broadcaster Each eligible full-power . 91 89 supra ELETE D . See While one of the goals of the DTV transition was transition to replicate the goals of the DTV While one of the 6th, note 82 at 14,628 ¶ 84. Moreover, the FCC created its allotments to ensure service area to ensure service created its allotments Moreover, the FCC ¶ 84. 14,628 at 82 note OT
90 N 47 U.S.C. § 336(a)(1) (2000); (2000); § 336(a)(1) U.S.C. 47 O pre-transition environment for broadcas broadcasters’ post-transition channels their original NTSC analog channel or their interim second DTVinterim their or channel NTSC analog original their channel. channel to broadcast DTVchannel during the interim until the transition was completed, broadcasters when were to relinquishrequired one of the and return to broadcastingchannels on original license held by the original license 89. ATS 6th, 6th, ATS (Dec. 1968) 89. broadcaster can result in interference, from the beginning of to another proximity geographic “markets” into geographic licenses need to divide television channel regulation, the broadcast was prompted by concerns about interference). the need to allowthe need stations effectively compete to in the provision of DTV while minimizing services services. Report & Order was operations DTV for channel additional The See Television Systems and Their Impact Upon Their Impact Upon and Television Systems levels of expected reception quality. define different that 88. by contours coverage areas are defined TV broadcast NTSC DTV signal.DTV D 460 fact did not reach 100 percent coverage of their prior analog services areas. services areas. analog fact did not reach 100 percent coverage of their prior levels allowed by the FCC. For stations moving from a VHF channellevels allowed by the FCC. For stations to ultimately transition to UHF channels, with quite different propagation properties and power requirements. Wi channels, two engineering considerations be supra replicated the existing service that best a channel with matching a station by “replication” service within these new service areas. areas, but did allow stations flexibility in providing intent was for broadcasters to be “made whole” by the replication of their to be “made whole” by the intent was for broadcasters existing analog service characteristics on their post-transition channel, which viewers could continueidentify to as the original TV channel number using “virtual channels.” ATS Stat. 251, 265 (1997) (adding new 47 U.S.C. § 337(e)(1) of the Communications Act) Communications Act) of the § 337(e)(1) new 47 U.S.C. (adding (1997) 265 Stat. 251, digital the after the date on which operate at that frequency not “may (directing that stations Commission.”). terminates, as determined by the television transition period Systems and Their Impact Upon the The FCC considered all core 2-51 cha 91. Grade A and Grade B Service Contours, Contours, Service B Grade and A Grade Opinion & Order on Reconsideration of the Fifth Report & Order Fifth of the on Reconsideration Order & Opinion permit broadcasters to switch DTV to its willingness expressed FCC Nevertheless, the (1998). NTSC services to an existing 30555_cdt_9-2 Sheet No. 67 Side B 08/09/2011 09:04:54 B 08/09/2011 67 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 68 Side A 08/09/2011 09:04:54
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ITS for for On G.A. 99 92 1:18
See VALUATING VALUATING SE OF THE E U (1982) (describing the the (describing (1982) the DTV standard 461 47 C.F.R. § 2.106 (2010) (2010) § 2.106 C.F.R. 47 ODE See M OULETTE R UIDE TO THE UIDE TO G ATE ATE
for public safety services by for public safety services D ETHODOLOGY FOR FOR ETHODOLOGY A 95 services in some bands on the basis of a basis on the bands services in some
, M REDICTION other primary goal of the DTV given the general rule that higher that higher rule the general given their power requirements fall than P system under certain conditions. certain conditions. under system ICE RANSITION -R REA T
’ The FCC reallocated 63- TV channels A OMMERCE 96 C (2004).The Longley-Rice technique is widely used for used widely is Longley-Rice technique (2004).The The latter consideration predominated in ONGLEY ction and otherction and of features 93 L
T OF , ’ ROADCASTERS N ’ B EP Letter from G.A. Hufford to users of the model, (Jan. 30, 1985) the model, (Jan. 30, users of to Hufford Letter from G.A. D ODEL IN THE IN THE ODEL HE
M OMM to public safety radio services such as emergency C U.S. see also see b. and New Users Reallocations 97 NTERFERENCE NTERFERENCE
N ’ I ., Part III.A. Part III.A. ERRAIN 6/21/2011 The FCC reallocated TV channels 60-62 and 65-67 T infra infra OMMC Reallocation of Television Channels 60-69, the 746-806 MHz Band, 12 FCC 60-69, the 746-806 MHz Band, 12 FCC of Television Channels Reallocation 98 C ELETE
. D . See
Another factor that influencedAnother factor theselection of transitioning ED 94 OT 98 N F UFFORD ET AL UFFORD OVERAGE AND AND OVERAGE O RREGULAR M K dispatch. predicting the geographic coverage of a radio coverage of geographic predicting the fixed and mobile telecommunications and broadcasting, with the licenses and broadcasting, fixed and mobile telecommunications to be assigned by competitive bidding. In addition, the FCC reallocated most cases so that more stations saw that more so most cases rise. general in levels and appropriate power Bulletin No. 69 in determining the Technologies 92. FCC used The and procedures techniques discussedin Office of Engineering the and and UHF. “dipole effect” high-VHF, phenomenon as the discuss the defined for low-VHF, See C H I a UHF channel, higher power levels were necessary levels power higher channel, a UHF to replicate the area, coverage analog NTSC original frequencies greaterrequire providepower to coverage. equivalent D 2011]T (Table of Allocations). (Table of 99. MHz bands, respectively. and 776-794 the 746-764 MHz are These channels software and modeling techniques used by the FCC for the Longley-Rice point-to-point radio for the Longley-Rice FCC by the used techniques software and modeling model); propagation allowed the settingallowed of lower power levels than thoserequired for an signal. NTSC equivalent 64 and 68-69 January 1, 1998, and to make the remaining 36 megahertzJanuary 1, 1998, of and to make the the band available for commercial use via competitive bidding (i.e., a spectrum auction) after January 1, 2001. the other error hand, corre (identifying modifications to the computer program). modifications (identifying See case asinformed field trials the engineering analysis. 93. be the would thought Power levels were ultimately reduced less than was originally 94. 95. band. the 746-806 MHz are These channels 96. (1997). § 309(j) 47 U.S.C. 97. MHz bands, respectively. and 794-806 the 764-776 MHz are These channels basis of FCC allocates spectrum on the briefly above, the discussed As (1998). Rcd. 22,953 in Part Rules by FCC safety users regulated public use by fixed or mobile as for services such some users of the FCC regulates addition, 90. In users. to protection as “primary” or “secondary” priority of rights stations’ channels was found in the stations’ channels transition—that of reallocating some broadcast spectrum for other uses. 24 megahertz of 1997 required the FCC to reallocate The Budget Act of UHF channels 60-69 spectrum in the C Y 30555_cdt_9-2 Sheet No. 68 Side A 08/09/2011 09:04:54 A 08/09/2011 68 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 68 Side B 08/09/2011 09:04:54 M K
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Report Report 1:18
Reallocation RANSITION T RANSITION See T ance included the at consumers would at consumers ELEVISION review legislative the T . [Vol. 9 [Vol.. “move in” to their new “move in” to their EGARDING THE all broadcasting to the new R IGITAL , 17 FCC Rcd. 1022, 1023 ¶ 1 (2002) 1 ¶ 1023 1022, Rcd. FCC 17 , wireless uses. Furthermore, in D
, of spectrum television to devoted in the previous section. However, FFICE AMPAIGN channels 2-51 after the end after the 2-51 channels of the O C tant freeing of broadcast spectrum for for spectrum broadcast of tant freeing , 23 F.C.C.R. 2994, 3001 n.20 (2007). In order to In (2007). n.20 3001 2994, 23 F.C.C.R. , Report & Order to develop temporary DTV operations on took steps to ensure th The spectrum from made available these 101 J. L ON TECH. HIGH & TELECOMM. NFORMATION NFORMATION I CCOUNTABILITY CCOUNTABILITY A
Analog Broadcasting DTV Sixth Memorandum Opinion & Order, 13 FCC Rcd. at 7419 ¶ 5; 7419 ¶ 5; Rcd. at Order, 13 FCC & Opinion Memorandum Sixth DTV T ’ 102 See See OV making channels 52-69 (totaling 108 MHz of spectrum) 108 MHz 52-69 (totaling making channels 6/21/2011 G 2. The Mandatory Transition to DTV and Cessation of
Reallocation & Service Rules for 698-746 MHz Spectrum Band (Television MHz Reallocation & Service Rules for 698-746 100 , Notice of Proposed Rulemaking , Notice of Proposed ELATED TO AN AN TO ELATED ELETE 17 FCC Rcd. 1022, 1024 (2002). (2002). Rcd. 1022, 1024 FCC 17 R D . See Numerical Designation of Television Channels, 47 C.F.R. § 73.603(c) (2010). (2010). 73.603(c) § 47 C.F.R. Television Channels, Designation of Numerical As discussed in more detail below, television broadcast use of below,detail use more in broadcast television As discussed Congress and the FCC OT 100 N O SSUES SSUES and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), Service Rules for the 698-746 and & Order, U.S. 102. Channels 52-59), GN Dkt. No. 01-74, 01-74, GN Dkt. No. Channels 52-59), (discussing the Commission’s core channel policy for channels 2-51). “The ‘core spectrum’ spectrum’ ‘core 2-51). “The Commission’s core channel policy for channels (discussing the MHz) and 5 to 6 (76-88 MHZ), VHF 2 to 4 (54-72 included the low-VHF channels but does not MHz), 14-51 (470-698 channels and UHF (174-216 MHz) channels 7 to 13 Third astronomy research.” radio used for is MHz), which (608-614 TV channel 37 include To Digital Conversion the Affecting Policies and Rules Commission’s Periodic Review of the Television protect sensitive radio astronomy operations, use of TV channel 37 was not allowed for NTSC allowed for NTSC not TV channel 37 was of use operations, astronomy protect sensitive radio or DTV service. also see 101. services in 2001. were reallocated for new wireless Channels 52-59 available foravailable new uses. I transition, broadcast to a core to broadcast spectrum of other spectrum, reducing spectrum, other amount the D 462 (2005). (2005). reallocations was highly sought after because of after because was highly sought reallocations valuable propagation its characteristics. some geographic areas broadcasters could not could areas broadcasters some geographic channels outside the core spectrum was originally to be ended after May core spectrum was originally to channels outside the to June 2009) of the DTV transition date (ultimately 2003, but the delay by changes to the statute also delayed making available spectrum safetyintended for public and commercial stationsspectrum until other “vacated the premises.” In some cases, complicated cascading scenarios of stations vacating channels to be used by other users may have influenced broadcasters’ decisions regarding NTSC channels. when to turn off analog opportunities for broadcasters achieving the goal ultimate of transitioning standard, and the concomi DTV new uses, proved challenging. In this section, we enjoy the benefits of DTV by adopting policies encouraged that and manufacturerseventually required and broadcasters to transition to the new standard. The policies encouraging compli separate channels that were described 30555_cdt_9-2 Sheet No. 68 Side B 08/09/2011 09:04:54 B 08/09/2011 68 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 69 Side A 08/09/2011 09:04:54 PM
1:18
(Susan Boriotti Boriotti (Susan
4 108 of the transition 463 VERVIEW O N OULETTE A R
: pertaining to broadcasting, ATE ATE
D the Balanced Budget Act of 106 isting licenseesproceeded after an ns to and delays r did not have DTV-ready receivers r did not have DTV-ready receivers ELEVISION The deadlines depended on the size ve to relinquishof their channels one were Stations in the top 10 located. T RANSITION 105 provide new licenses (at no cost) to provide new licenses T date. The FCC issued some 1,600 date. The FCC
’ IGITAL D
, ROADCASTERS making “extensions” available. If 85 percent of B RUGER HE K
note 90, at 12,840-12,841 ¶ 76. 76. ¶ note 90, at 12,840-12,841 G. a. History Legislative Transition of the DTV In thesection of the Act supra 103 6/21/2011 5th,
and adopted mandatory dates that stations adopted mandatory dates that and would have to ENNARD ENNARD Balanced Budget Act of 1997. Act of 1997. Balanced Budget . ¶ 99. The FCC intention to require stations to cease analog broadcasting in 2006 2006 in broadcasting analog stations to cease to require intention The FCC 99. . ¶ While the Act made statutory the regulatoryrequirement to 104 ELETE D . See . Id 107 In the first of many modificatio The distribution of licenses to ex Congress, in the Telecommunications Act of 1996, undertook the of 1996, undertook Act in the Telecommunications Congress, OT 107 106 N O M K and cease analog broadcasting until 2006. and cease analog broadcasting of the markets where the stationsof the markets where to transition by Maymarkets would have those in markets 11- 1, 1999; stations by 11, 1999; all other full-power commercial 30 by November by May 1,May 1, 2002; and noncommercial stations 2003. However, the FCC decided stations would not ha & Donna Dennis eds., 2002). eds., 2002). & Donna Dennis ATS 105. 103. Pub. L. No. 104, 110 Stat. 56 (1996) (adding Act of 1996, Telecommunications Act of 1934). Communications §336 to the the FCC to to require debated whether 104th Congress The 104. $70 billion. and $11 billion betweenvalue of an estimated had to broadcasters was given spectrum that The DTV to auction the FCC the to authority no granted end but in the DTV licenses, auction the spectrum. L history that structured the DTV transition and the FCC regulations thatregulations transitionhistory FCC and the DTV the that structured specifically stations instructed to transition. and when how law communications revision of most significant the establishment since of the FCC. D 2011]T or were subscribers of cable or satellite,wouldwere the deadlines not applyor subscribersof cable and the DTV transition in would not proceed. that market households in any given market eithe cease analog broadcasting by the end of 2006, it relaxed the transition dates listed above by 1997. scheme, Congress revisited the issuein Congress directed the FCC to Congress directed of DTV broadcasting under the for the provision incumbent broadcasters condition that broadcasters the new or would have to return either original analogsome license at licenses was made statutory by the Balanced Budget Act of 1997, codified in various section of 42 section of 42 in various of 1997, codified statutory by the Balanced Budget Act was made U.S.C.
“transition” to DTV broadcasting. a digital 108. networksare not broadcasting national the four stations affiliated with television as well: if one or more of the conditions There were other (1997). § 309(j) 47 U.S.C. in the generally available is not converter technology digital-to-analog or if signal; television market of the licensee. C Y 30555_cdt_9-2 Sheet No. 69 Side A 08/09/2011 09:04:54 A 08/09/2011 69 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 69 Side B 08/09/2011 09:04:54 M K
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3:05 IGITAL
APAN J D ROADCASTERS ROADCASTERS B ANY ANY UROPE AND UROPE M E :
, 27 (2002). (2002). 27 . [Vol. 9 [Vol.. t simply on extending the Baylor University Medical dcast broadcast and services MERICAS EADLINE delays. In February2006, the FCC that required a careful a that required FCC A D Congress again regarding the meet their DTV construction d signs of concern. In thed signs of concern. Dallas- s and lack of funding for new s and lack of funding for The DTV Transition in the US, in US, the The DTV Transition in set the first so-called “hard deadline,” ELECOMMUNICATIONS ELEVISION ELEVISION T 111 T
, RACTICE IN THE monitors at the P FFICE IGITAL O J. L ON TECH. HIGH & TELECOMM. D
Thus, February 17, 2009 was to be the final day of 2002 112 AY AY OLICY AND OLICY AND Stations complained of a variety of difficulties. Foremost Stations complained of a variety of M P
109 : CCOUNTING CCOUNTING A 8/8/2011
EET . Debate began anewDebate began in Congress, no M Evan Kwerel & Jonathan Levy, Evan Kwerel & Jonathan Levy, 47 U.S.C. 309(j)(14) (2006). (2006). 309(j)(14) 47 U.S.C. EN ELETE 110 OT D . See . See N As 2006 approached, along with the date for relinquishing analog As 2006 approached, along with the Entering 2008, concerns arose in In 2001, FCCIn 2001, the DTV Task Powell formed Chairman Michael OT 112 110 N ILL O ROADCASTING facilities. Budget Act of 1997, Congress broadcast spectrum set in the Balanced became increasingly concerned that the 85 percent “readiness” threshold would be met in few markets, preventing a timely transition. By 2005, only 3.3 percent of television households were capable of receiving DTV signals. among their concerns wereamong their concerns difficulties acquiring approvals by local tower antenna of new governments directing that the FCC terminate all analog television licenses by February 18, 2009. Deficit Reduction Act of 2005 Reduction Act of Deficit previous deadline but instead focusing on adopting a new “hard” date that would not be subject to extensions or public’s preparedness for the transition. In its February 17, 2009 report in analog television broadcasting in the U.S. requirements. W B eds., 2002). Nakamura & Kiyoshi (Martin Cave 111. Act Reduction Deficit III of the (Title (2006) Stat. 4, 21-28 120 §§3001-3013, Digital Television Transition Public Safety Act of 2005 (“DTV Act”), Pub. L. and No. 109-171, at 47 amended as (codified (“DRA”)) (2006) 4 Stat. 120 109-171, No. L. Pub. of 2005, Communications Act to of the §309(j)(14) (amending 337(e)) and §§ 309(j)(14) U.S.C. transmissions by analog termination of for 17, 2009 as the hard deadline February establish full- power stations). Center. Additionally, stations complained of the significant cost of the 1,240 full-power about three-quarters of the transition. By 2002, had failed to broadcast stations G 109. stations alike. Manystations alike. in the UHF allotted spectrum DTV licenses band, powerwhere higher levels were necessary to maintain the equivalent service existing areas to the footprint. analog broadcast Force to track and facilitate early of DTV progress Earlyadoption. transition indicatepreparations for the in 1998 resulted in tests by station WFAA with DTV Fort Worth area, interference to 12 heart unprecedented engineering effort at the at the effort engineering unprecedented levels power at precise allotments of channel selection each geographic in prevent interferencemarket to non-broa to D 464
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, 24 DTV see also 1:18
EDERAL EDERAL , NTIA, F See generally available at available NCREASED NCREASED The new deadline I 465
ACILITATE THE and general lack of general and : 115 F 114 OULETTE R URTHER ATE ATE F D categories of televisions had even earlier categories of televisions & Sua Sponte Order on Reconsideration on Order Sponte Sua & ve coupons while expired coupons funds were ve coupons while expired coupons funds were OULD OULD C RANSITION for the program neared exhaustion. broadcasting before the deadline, the ELECOMMUNICATIONS T
’ ty; Converter Coupon Program TV Box ty; T
, FFICE O or strategy to measure progress theresults in and ROADCASTERS ANAGEMENT ANAGEMENT B M HE As the nation enteredAs the nation the final months before the ISK b. FCC Rules for Transitioning 113 R CCOUNTING CCOUNTING
A 6/21/2011
116 . (Nov. 2007). 2007). (Nov. EN ELETE D From a regulatory perspective, the DTV transition was more regulatory perspective,was the DTV transitionFrom a 1. Voluntary Early Transition Early Voluntary 1. order on DTV matters (“Third In December 2007, in a report and OT N RANSITION O LANNING AND LANNING AND M K http://www.whitehouse.gov/the_press_office/StatementofPresidentBarackObamaonSigningth eDTVBill/. 116. video recorders) manufactured digital and (e.g., TVs for video reception all devices intended that market, mandating receiver equipment set rules for the television also The FCC ATSC tuner. Certain an after March 1, 2007, include deadlines. Implementation of the DTV Delay Act, Report & Order Report & Act, the DTV Delay of Implementation http://www.ntia.doc.gov/dtvcoupon/ (last visited Apr. 10, 2011). 10, 2011). visited Apr. http://www.ntia.doc.gov/dtvcoupon/ (last 115. 609); § (47 U.S.C. (2009) Stat. 112 123 111-4, L. No. Pub. Act, DTV Delay of President Statement Barack Obama, President (2009); Press Release, FCC Rcd. 1607 2009), the DTV Bill (Feb. 11, on Signing Barack Obama February Congress and President deadline, Obama’s concerns about the program forNTIA’s coupon boxes DTV converter provided by the Act (and this time the final deadline) was June 12, 2009. was June 12, 2009. (and this time the final deadline) provided by the Act Review R&O”), the FCC adopted rules allowing stationsin to transitionadopted rules allowing FCC R&O”), the Review recommitted and the overall total funding and Information Department of Commerce’s National Telecommunications The 114. authorized Program the TV Converter Box Coupon administered (“NTIA”) Administration (2006). 3005 § 2005, of Act Safety Television Transition and Public Digital in the purchase of the were eligible to receive two $40 “coupons” good towards Households the transition significant converter boxes. During the weeks leading up to digital qualifying numbers of consumers were on a waitlist to recei 113. G 113. P T November 2007, the Government Accountability Office concluded that concluded Office Accountability Government the 2007, November no comprehensive plan transition existed in the federal government, and that consumer outreach beingconductedwere efforts primarily private by stakeholders sector on a voluntary basis. D 2011]T Digital TV Transition and Public Safe Public and Transition Digital TV preparedness of consumers grew. In response, the DTV response, the Delaypreparedness of consumers Act was In grew. signed into law a week before the erstwhile deadline. complex than merely giving deadlines to broadcasters. Since some Since to broadcasters. giving deadlines complex than merely stations wished to cease analog FCC promulgatedtransition rules to allow the to proceed smoothly, without unduly stations hindering or creating confusion among consumers. C Y 30555_cdt_9-2 Sheet No. 70 Side A 08/09/2011 09:04:54 A 08/09/2011 70 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 70 Side B 08/09/2011 09:04:54 M K C Y PM
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117 The first 119 note 1, at 3045 ¶ note 1, at supra . [Vol. 9 [Vol.. terminations prior to the prior to the terminations a new channel for post-transition new channel for post-transition a approval from the FCC before g digital service on their pre-transition DTV g digital service on their pre-transition DTV the change would occur. note 1, at 2995-2996. 1, at 2995-2996. note
The proceduresThe for analog termination are supra 120 when 118 J. L ON TECH. HIGH & TELECOMM. alog channel or moving to alog channel or moving 6/21/2011 Third Review R&O, at 3045 ¶ 107. ¶ 107. at 3045 ELETE D . Id. . See (2)The station planned to notify viewers on its analog channel about station planned (2)The (1)The analog service reduction or termination was directly related to or termination service reduction analog (1)The and operation of its, or another station’s,the construction post- transition facilities; and 19, 2008 19, for different service rules R&O outlined Review Third The 2. Early to November Termination Prior OT 118 117 N O 116. 116. operations were also allowed to terminate existin terminate operations were also allowed to thechannels prior to transition date. 120. of post- operation as “directly related” to the construction and Examples identified and analog need to reposition their digital Stations that facilities included: “(1) transition need to add a third antenna to their Stations that (2) transition; before the end of the antennas tower because the service analog or terminating reducing so without do tower but cannot on a collocated cannot support the weight of the additional transmission facilities; (3) Stations order to configure in stations with other tower that must coordinate a reduction or termination with their with equipment currently in use their final, post-transition facilities; (4) Stations must that Stations and (5) operations; use with their digital to plan they that operations analog station to construct its to permit another channel in order terminate operation on their analog Review R&O, channel.” Third on that facilities DTV post-transition and commencing their analog stations terminating an early transition, 119. part of As DTV service on their an
requirement is that stations must obtain making changes. Requests had to be filed of the 90 days in advance to show that: planned termination, and stations had similar to the sets of rules for the othersimilar to the sets of rules for such as service changes, terminating ATSC service on the temporary DTV channel.
advance of the February 17, 2009 deadline then in effect. in then deadline 2009 17, the February of advance D 466 procedures allowed early early allowed procedures analog of termination the provided service, change would certain facilitate goals The procedures of the transition. to the Commission, required showings eligibility requirements, outlined for early viewers to inform and requirements last 30 days After the deadline. before the DTV Delay changed Act the transition date from same rules 12, 2009, the 17, 2009 to June February applied to the deadline new modifications). The procedures (with some vary slightly dependingfor early termination on the service,most but importantly, they vary on scenarios. One set of rules related to the termination or reduction of thereduction of to termination or set of rules related the One scenarios. existing analog NTSC service, and, in effect, governed the early DTV transition of a station. 30555_cdt_9-2 Sheet No. 70 Side B 08/09/2011 09:04:54 B 08/09/2011 70 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 71 Side A 08/09/2011 09:04:54 PM
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d when the The FCC , ‘flash cut’ Notification 125 i.e. es for stations . at 3045 ¶ 117. . at 3045 ¶ 117. 122 Id 467 nce its full, authorized post- d or terminated its analog or or its analog terminated d or tation, i.e., how an 90 days of the February station must continue to serve station OULETTE R to the planned service reduction or ATE ATE D ification procedur request information.” station must not cause impermissible impermissible not cause must station in motion “daisy-chains” in motion of early termination procedures. termination RANSITION transition and comme email address and phone (if available), number of T
’ ter comments or n is planning to or has reduce or has to planning n is d (2) The early transitioning (2) The early transitioning d
do to continue to receive the s 121 ROADCASTERS B HE
123 and to move digital channels to new channels. to move digital channels and 124 6/21/2011 ¶ 114. ¶ 114. ¶ 124. ¶ 124. . ¶ 121 (allowing moving from a pre-transition DTV channel to a post-transition DTV channel to a post-transition from a pre-transition moving . ¶ 121 (allowing . ELETE D . Id . Id . Id. . Id. the planned changes and inform them about how they can continue can continue how they them about and inform changes the planned the station. to receive not The FCC provided streamlined 3. Early Termination from November 19, 2008 through February 16, 2009 The procedures also allowed most stations with an out-of-core DTV out-of-core with an stations allowed most also procedures The Appropriate notification of viewers of impending changes was an changes viewers of impending of notification Appropriate OT 125 122 123 124 N O M K its existing viewers for the remainder of the transition operations on February 18, 2009.” This date marks the expiration of the transition transition of the expiration date marks the This 18, 2009.” on February operations transition deadline.). transitioning The early “(1) channel, provided: interference to another station; an viewed these early transitions favorably, identifying that they could could they that identifying favorably, transitions early these viewed spectrum and construction, engineering, by freeing transition facilitate the were terminations early Thus, later. building stations for those resources seen to advance the transition by setting transitions, wherein as channels were vacated by a departing station they they station a departing by were vacated as channels wherein transitions, station. for an incoming spectrum in the up space freed terminating analog broadcasting within or digital November 19, 2008). on or after 17, 2009 transition date (i.e., beginning The procedures required stations to file notification with the of the planned serviceCommission 30 days in advance reduction or termination. The station had to show that the change in service was necessary for purposes of the transition. The stationits also had to notify 121. at day including a times at least four on-air required “every day were Notifications prior least once in primetime for the period 60-day termination. These notifications must include: (1) the station’s call sign and community of community call sign and the station’s must include: (1) notifications These termination. statio fact that the license; (2) the or the date of the planned reduction (3) date; digital operations before the transition termination; (4) what viewers can of digital- to-analog converter boxes in about the availability information digital (5) station’s their servicestreet area; and (6) the address, viewers may regis the station where D 2011]T was required to commence no fewer than 60 days prior to termination of to termination prior 60 days than fewer no commence to was required signal. analog the
channel “to terminate pre-transition digital service and transition directly directly service and transition digital pre-transition channel “to terminate ( channel digital post-transition their to analog from their important component of the early component important approval)[,]” C Y 30555_cdt_9-2 Sheet No. 71 Side A 08/09/2011 09:04:54 A 08/09/2011 71 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 71 Side B 08/09/2011 09:04:54 M K C Y de PM
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Stations available at terminate 127 (2009), television service) prior to transition after
. [Vol. 9 [Vol.. Commission’s Rules and PoliciesCommission’s Rules and ons that sought to Act, including the flexible procedures Act, stations effectively entered a centive to do so were generallycentive to do so 24 FCC Rcd. 1586 24 terminate on that day. , clusively in the digital clusively in the digital rules for early termination of analog e, stations that sought e, Public Notice Public nded by section 2 of this Act) so long as such prior prior such long as so Act) this section 2 of by nded note 115 at § 4(a) (2009) (“Permissive Early Termination Termination (“Permissive Early (2009) at § 4(a) note 115 J. L ON TECH. HIGH & TELECOMM. supra of Third Periodic Review the of the date of enactment of this the date 6/21/2011 Given that untilGiven that Act was the the passed a week before 126 ELETE D The DTV Delay Act provided that stati 4. Early Termination on February 17, 2009 2009 DelaytheAfter the DTV Act postponed mandatory analogshutoff 5. Early Termination after February 17, OT N O http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-6A1.pdf. established in the Matter established in the MB Docket No. 07–91, (FCC 07–228, toAffecting the Conversion Digital Television released December 31, 2007)”). 127. Television Service Analog of Procedures Regarding Termination FCC Announces or After February 17, 2009, On termination is conducted in accordance with the Federal Communications Commission’s Commission’s Federal Communications the with in accordance conducted termination is requirements in effect on to the date established by law under section 3002(b) of the Digital Television Transition and Television Transition the Digital of section 3002(b) under law by established to the date the in stations all licenses television full-power of for termination for Act of 2005 Public Safety ame service (as analog television UnderRequirements—Nothing Existing in this Actto prevent is intended a licensee of a analog of such station’s terminating the broadcasting from station television broadcast ex to broadcast continuing (and television signal were not required to submit pleadings or engineeringwere not required data in supportof requests service on to terminate analog February 17, 2009. Thus, stations that intended to transition and had in permitted to transition on the February 17, 2009 date. We discussFebruary 17, 2009 date. permitted to transition on the exceptions to this in section III.B. About one-quarter of stations transitioned on this date, as we discuss in the empirical section below. date from February to Jun February 17, 2009 were subject to the existing rules for early termination. existing February 17, 2009 were subject to the In particular, an early termination 90 days prior to June 12, 2009 did not require FCC approval, but requests to terminate between February 18 and March 13 showing need. With required advance approval and filings no option to waive these requirements, 126. DTV Delay Act, Delay DTV 126. erstwhile deadline stations were preparing to transition on 17, February early termination requirements waived generally the 2009, the FCC stations wishing to outline above for viewers on pre-transitionviewers and change service the planned about channels continue could how they tell consumers the to receive The station. FCC priordid not require approval (as it had before). D 468 before the newtheir analog service 12, 2009 deadline would be June existingsubject to the FCC’s service. 30555_cdt_9-2 Sheet No. 71 Side B 08/09/2011 09:04:54 B 08/09/2011 71 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 72 Side A 08/09/2011 09:04:54 PM
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television service 469 OULETTE RANSITION This voluntaryThis program R on or after March 14, the the March 14, on or after T
to the termination ofanalog 129 ATE ATE the costs and benefits of thecosts and benefitsthe of D ing available (in analog) news, DTV d permit” analog notification of the termination date RANSITION T
’ cing the stations’ decisions. ROADCASTERS B ions terminating analog ions terminating ONCERNS OF THE ONCERNS OF HE required the Commission required the Commission to develop and implement C 128 6/21/2011 ELETE TRATEGIC D As of March 14, 2009 (90 days before the new statutory transition new statutory transition days before the 14, 2009 (90 As of March major networks—ABC,Affiliates of the CBS, Fox, and NBC— As the history of the legislative and regulatory action in the previous cooling immediately off period the transition, after with no stations OT N O M K became required after the delay, except for noncommercial stations experiencing financial significant that were allowed hardship to terminate analog service beginning on March 27. III. S a voluntary program to “encourage an a voluntary program to “encourage for a 30-day period after transition for viewersthe DTV who had not deadline. successfully transitioned by the section documents, television broadcasters faced many choices of when to transition fully to DTV and turn off their analog transmissions. Like any business decision,stations theconsidered some This section reviews transition. various dates they were allowed to of the primary factors influen 128. 122 Pub. L. No.110-459, Readiness Act, Stat. 5121 (2008). Flash and Emergency Short-term Analog 23, 2008, prior to the enacted on December Act was Analog Nightlight The 129. from deadline transition nationwide which changed the DTV Delay Act, the enactment of 12, 2009. June February 17 to transitioning between February 18 and March 13. 13. 18 and March February between transitioning deadline), the streamlined notification procedures again were to available For stat broadcasters. FCC requiredprior at least 30 days 30 days notification at least and viewer prior 17, 2009 were stations transitioning after February service. However, subject to a number of additional public interest obligations. that wished to terminate analog service12 were required prior to June to of to would continue 90 percent their analogviewers least ensure that at receive analog service another major network affiliate through from June service could consist of12. While the continuing regular analog programming major network affiliates from one or more of the remaining on the air until the transition, service was also possible from an “enhanced nightlight” service mak informationfrom a major networkaffiliate. emergency public affairs and The Short-term Analog Flash and Emergency Readiness Act (“Analog Nightlight Act”) facto D 2011]T C Y 30555_cdt_9-2 Sheet No. 72 Side A 08/09/2011 09:04:54 A 08/09/2011 72 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 72 Side B 08/09/2011 09:04:54 M K
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EWS infra infra ORG
. N 1:18
See also See Why Is IPTV IPTV Why Is (Feb. 9, 2009, (Feb. 9, URRENT C LOG B ULTICHANNEL ULTICHANNEL 2 Local Stations Plan to Go (Feb. 10, 2009) 10, 2009) (Feb. M RESS . [Vol. 9 [Vol.. NSWERS NSWERS P plained about the high plained A
om the cessation of analog for DTV transmission over 96 (2005). (2005). 96 savings from completing the s of operating the transmitter such as s of operating the transmitter DTV AW are the lower electricity bills forare the lower electricity L AILY , Feb. 19, 2009; Some estimates placed the total D OWA OWA 131 EDIA , I the power requirements needed for the power requirements M EWS EWS EWSWIRE thousand dollars per month or more. per month or thousand dollars religious network TBN$5 million spent N N
130 AP many stations com many stations LECTRONIC LECTRONIC TBN Finishes HD in Dallas, Upgrade HD TBN Finishes J. L ON TECH. HIGH & TELECOMM. E
Thus, by switching, stations could realize savings , EWPORT EWPORT 134 t include ancillary electrical cost include t N ADLER S
L. 6/21/2011 Current Briefing: Digital Television and Public Television, Public and Television Digital Briefing: Current
George Winslow, Since by February 2009 stations had already begun DTV 2009 stations Since by February
OGER 132 133 ELETE D . See . See A. Stations for of the Transition Costs The The two major cost considerations for a station contemplating for a station major cost considerations The two the On the plus side of a station’s ledger On the plus side of OT 132 131 N O (May 13, 2009), http://www.multichannel.com/article/232375-TBN_Finishes_ http://www.multichannel.com/article/232375-TBN_Finishes_ (May 13, 2009), HD_Upgrade_in_Dallas.php. 130. R 130. D 470 Digital Feb. 17, costs of for public at around $1.7 billion upgrading for the transition alone, whichtelevision stations is greater than the annual income of such stations. upgrading its facilities in New York. de-icing equipment for the antenna, liquid chillers for transmission tubes, and environmental and environmental tubes, de-icing equipment for the antenna, liquid chillers for transmission the transmitter. remove the heat load from to cooling (air conditioning) per savings electricity cost of estimates monthly sources provide industry 135. Various Andrew M. Seder, to $20,000 and higher. several thousand dollars from station ranging Signal Going, Analog WNEP to Keep broadcasting, the relevant short-run power transition came from terminating analog broadcasting. Shuttingfrom terminatingtransition down analog broadcasting. came the analog transmission saved an estimated 40.3 KW of power for the average station, for an estimated reduction of about $2,500 in the monthly energy bill. note 159. note 159. buys and 134. days, 30 for a day hours average of 22 an broadcasts station a Assuming power at the state average commercial retail electricity the average price (data from 1Q2009), is data estimated from our analog transmission to be $2,575/month. from turning off savings does no This calculation http://www.current.org/dtv/ (last visited Mar. 2, 2010). 133. data is 5.6 KW (see Table 2). in our a station of broadcasts and digital the analog The average value of the power necessary for difference in our estimate of the input
Continuing Analog Broadcasting Past Feb. 17? Past Feb. Broadcasting Continuing Analog http://www.tmcnet.com/usubmit/2009/02/10/3977517.htm; Jennifer Konfrst, Jennifer Konfrst, http://www.tmcnet.com/usubmit/2009/02/10/3977517.htm; DTV transition are the cost of newthe equipment necessary to begin digital broadcasting fr the power savings and All along, transmission. equipment costs of the transition. In 1999, Station KSTP-TV of Station KSTP-TV 1999, the transition.In costs of equipment million to upgrade reported spending about $1.5 Minneapolis-St. Paul its facilities for the transition, estimatedseveralperhaps to be broadcasting. As mentioned in section III.B.1.a.broadcasting. As above, the switch to DTV had the potential to lower broadcasting. Our analysis of the station engineering data filed with the savings FCC indicates that the input power analog broadcasting was over five kilowatts (“KW”)the average for station. 30555_cdt_9-2 Sheet No. 72 Side B 08/09/2011 09:04:54 B 08/09/2011 72 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 73 Side A 08/09/2011 09:04:54
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5:05
Older Older MERICAN 137 A s. In an era s. The costs of AILY AILY ng one-fifth of PBS ng one-fifth D tandably skittish
note 131. note 131. 471 136 e results showed that there Conference: Over-the-Air prevented theprevented use of supra Furthermore, even if all OULETTE R rtain for station 138 ATE ATE eering expertise. D ons were unders s could translate to losi could s RANSITION tations/presentations? T
’ Management Association vertising dollars for stations, and thus and thus dollars for stations, vertising e FCC was using, and that th As explained in section II.C.2 above, a loss of 139 ROADCASTERS B WJAC to Continue Offering Analog Broadcast, Analog Offering Continue WJAC to HE tion at Broadcasting Broadcasting tion at , Dennis Haarsager, Assoc. Vice President, Educ. & Public Media, Wash. Media, Wash. & Public Educ. Vice President, Assoc. Haarsager, , Dennis 8/1/2011 Dan DiPaolo, ELETE D . See . See, e.g. See, . Some costs of the transition were less ce costs of the transition were less Some Many stations cited the high cost of maintaininghigh cost cited the Many stations analog duplicate OT 136 138 N O M K and digital terminate requests to facilities the analog their to justify transmission. some cases, engineering In concerns the same antennas or other facilities for antennas or other the same DTV as for analog broadcasting. chose to construct separateIn other cases, stations facilities. (Feb. 7, 2009), http://articles.dailyamerican.com/2009-02-07/news/ http://articles.dailyamerican.com/2009-02-07/news/ 2009), (Feb. 7, 26296294_1_analog-broadcasts-coupon-program-converter-boxes. 137. we would a limping facility than together, rather keeping we decided that and and dying; aging are of legacy facilities that have a lot that “we TBN network stated the For example, stem to stern.” Winslow, from HD and go from scratch just start viewers translates into lost ad represents a real (if uncertain) consideration for station managers. 5:27 AM), http://iowadigitaltv.blogspot.com/2009/02/why-is-iptv-continuing- 5:27 AM), that a indicate FCC staff Conversations with analog.html?showComment=1234230120000. would likely be extreme. of $20,000 savings For the PBS network alone, the electricity cost savings cost the February for electricity alone, the network the PBS For to June reasonthe main is which $22 million, were period public most transitioning stations cited for television February. in D 2011]T went well with the transition, service footprints were changing in some locations, leading to a loss of some viewers. One study claimed that there would be “significantgaps” in DTV signal coverage across the country, since most consumers were unaware that they would have to add or upgrade their antennas. continuing to operate older facilities created an additional business risk an analog facilitywhen maintaining DTV in tandem with an operational facility. of declining broadcast viewership, stati about losing viewers because of unforeseen technical problems or lack of readiness on the part of viewing households. analog broadcast transmitters cantransmitters expensiveanalog broadcast to maintain, be particularly since procuringreplacementeven routinebe difficult, and parts can engin require specialized maintenance can
was little continuous DTV coverage beyond 35 miles from the broadcast antenna. 35 miles from the broadcast antenna. coverage beyond was little continuous DTV members). the DTV in Glitch 139. on Major Sheds Light New Research Press Release, Centris, claimed to use a more realistic engineering 2008). The Centris study 12, (Feb. Transition model of household reception than th Strategies 2007-2009 (May 31, 2007)) (PowerPoint slides available at available slides (PowerPoint 31, 2007)) (May Strategies 2007-2009 http://www.bloobble.com/broadband-presen about the information lacked basic time) many viewers the that (at itemid=433) (warning viewer OTA-only losing and that DTV transition State Univ., Presenta C Y 30555_cdt_9-2 Sheet No. 73 Side A 08/09/2011 09:04:54 A 08/09/2011 73 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 73 Side B 08/09/2011 09:04:54 M K
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UBLIC 1:18 P
24 FCC 24 FCC , ) to satisfy REGON , O Report & Order Report & those were already in . [Vol. 9 [Vol.. In some markets, some markets, In some mayhave influenced when In bothpassiveexamples, a ported that, in markets, manyported that, decision right before the made 141 decision-making developed in developed decision-making and explicit intervention by the and explicit intervention cases pooled resources in electricity potential costs and the on to continue its analog broadcasts consumers about the DTV transition were a consumers about broadcasters Digital TV Transition Happens Today! TV Transition Happens Digital mer-education efforts. mer-education efforts.
J. L ON TECH. HIGH & TELECOMM. See generally (June 12, 2009), http://www.facebook.com/note.php?note_id=91606741957 (June 12, 2009), http://www.facebook.com/note.php?note_id=91606741957 6/21/2011 (2009) (“Analog Nightlight Order”). 121 stations were reported to have provided have were reported to stations Order”). 121 Nightlight (“Analog (2009) ELETE D B. Other Strategic Aspects of the Transition In some cases, the flurry of regulatory activity in the final few weeks In the economic models of stations’ models of In the economic The costs of educating The costs of educating OT N O ROADCASTING Rcd. 6966 Rcd. 6966 service nightlight in 87 markets after the June 12 transition. (last visited Feb. 12, 2011). 12, 2011). (last visited Feb. Implementation of Act; Short-Term Analog Flash and Emergency Readiness 141. Establishment of DTV Transition “Analog Nightlight” Program, As another example of cost-sharing, stations in some markets actively coordinated the decision (and in some the obligation for at least one station to continue analog broadcasting switched to DTV. stations other after all firm might weigh an active firm’s ability to recoup some value fromfirm might weigh an active firm’s analog against the costs the firm operating the call center or remaining would incur. We do not explicitly modeltheseconsiderations. not being able to transition in stations before February 17, 2009, resulted when they wished. Although, as notedthat wished to above, stations transition on February 17 were generally allowed to do so, the FCC reserved the right to require a stati under certain conditions. The FCC specifically stated it would consideritwould The FCC specifically stated conditions. under certain such action if it found that most stations in a market were planning to [was] one interminate service, and that “the market which many viewers [were] unprepared for the transition or at risk if the transition 140. Broadcast stations country, Public of the in other parts Oregon and of State In the with existinghandling facilities for large call volumes served as entire for the call centers the market. broadcast B D 472 the next section,the next we take the change considerationssalient strategic viewers as the to lose for station Sincemanagers. stations’ we consider the erstwhile Februaryconsiderneedstations’ the to not we deadline, do or upgraded facilities,expenditure on new since a few other factors also place. However, stations turned off their analog broadcasts. Two of these are cost sharing among and coordination re FCC stations. The broadcast concern to inbroadcasters cooperated and operating funding walk-in call centers, consu centers, and other FCC. stationsfacilities with actively ran the their own staff, with other by providingfunding.broadcastersefforts participatingin the passively 30555_cdt_9-2 Sheet No. 73 Side B 08/09/2011 09:04:54 B 08/09/2011 73 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 74 Side A 08/09/2011 09:04:54 PM
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In the 144 146 available at available to transition s “contrary to the to s “contrary 473 desire to transition desire to decision s and viewership when OULETTE to transition early, based to transition early, R they would have proceeded both models, we assume a ATE ATE oning the transition. D desire V. We consider both decision theoretic model, in addition, model, a station also looks to the part of management (hereafter, the 24 FCC Rcd. 1552, 1553 (2009). 1553 (2009). 1552, FCC Rcd. 24 ding having to comply with the to comply ding having RANSITION T
’ than postp rs its own cost note 127. note 127. Public Notice, Public the stations the expressed yet find some of their plan of their some yet find 24 FCC Rcd. 1595 (2009). (2009). 1595 FCC Rcd. 24 supra ROADCASTERS transition to DT transition to and benefits, and the actual and benefits, and B note 144 (listing the eight measures the FCC required a station in note 144 (listing the eight measures the FCC required a station in These stations may have deemed some of the extra extra the of some deemed may have stations These HE 145 and its decisions were released thenext day. supra 143 As lateAs February as FCC was 10, the still reminding Public Notice, Public , 24 FCC Rcd. 1552 (2009), , 24 FCC Rcd. 142 6/21/2011 FCC Requires Public Interest Conditions for Certain Analog TV Terminations TV Terminations Analog Certain for Conditions Interest Public Requires FCC ELETE D . See D. Decision Theoretic Model C. Economic Models Decision of the Transition For clarity of presentation, we model a local television market with In this section, we present two economic stations’ models of the OT 146 N O M K on February 17, 2009, on February one of the “unprepared” markets to fulfill in order to terminate on February 17, 2009). terminate on February 17, 2009). “unprepared” markets to fulfill in order to one of the requirements, such as continuing to operate walk-in consumer toll-free engineering support centers and providing information and help to viewers, to be more expensive on February 17, not ofall of the 10 percent (43) did so. About them stations wishing to switch 17 broadcasts on February off their analog choseultimately to, thus avoi not additional requirements placed them if upon with the transition. Analog Responses to Requirements for TV Stations’ of Lists FCC Releases 145. on February Termination 17, 2009,
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-221A1.pdf. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-221A1.pdf. 144. on TV Terminations Analog Interest Conditions for Certain FCC Requires Public 2009, February 17, 142. Television Service Analog of Procedures Regarding Termination FCC Announces 2009, 17, or After February On Terminate Before Analog Operations Whose Stations Lists of FCC Releases 143. 2009, 17, on February Operations to Terminate Analog or that Intend February 17, 2009 Notice Public proceed[ed].” D 2011]T result, while 26 percent of 26 percent of result, while next section, we distinguish between the deciding to switch early. The game strategic thinkingincorporates on the “station”). In particular, in the game decisions it expects other stations in its market to make, and considers the impact of implications the others’ decisions on its profit. We test the of the models in the empirical work in the following sections. station’s management conside theoretic and game theoretic models. In theoretic and game theoretic models. decisions of when to early, complicated by the last-minute regulatory intervention. by the last-minute early, complicated on the financial costs public interest,” broadcasters that it could that it could broadcasters C Y 30555_cdt_9-2 Sheet No. 74 Side A 08/09/2011 09:04:54 A 08/09/2011 74 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 74 Side B 08/09/2011 09:04:54 M K C Y PM
), or or ), 1:18 ). We is the D
of the of A w i = There is I a = 150 a , the price of p A station earns A station Revenue Revenue from A station incurs A 147 switches to DTV switches to transition as well as the transition as well as the i 148 in the model. We also set in the model. We also set me that the switching . [Vol. 9 [Vol.. number of lost viewers, and so number of lost already sunk. We leave out to transition early to digital station is assumed to want to is assumed station to
per viewer. are invariant with respect to a period, and sets aside the impact impact aside the and sets period, p ) (that is, it takes less power for F required no additional filings to
wx ty or additional video audio and
D he transition period. he transition ( Thus, the risk a station takes fromstation takes a Thus, the risk i + problems. problems. x Thus, by the ti F 149 17, were made without enough time to alter the enough time to 17, were made without this is a short-run analysis. for the timefor the being(action 151 = ) > A ( i other prices, which we ignore x the broadcast footprint due to the broadcast footprint due to the the is the station’s viewership. is the amount of which is a electricity used, q x J. L ON TECH. HIGH & TELECOMM. is the expected value of the 0 i on profits after t on profits q i I available to each station is to broadcast in the to broadcast short run,which are of the form a , where viewers due to unforeseen varies by daypart. varies by daypart. C to be exogenously determined. ofit during the transition transition the ofit during
pq pq I Part II.B.2.b. II.B.2.b. Part , and the non-power cost 6/21/2011 viewers in expectation. w 0 supra i
to broadcast DTV than in analog). The ad price to broadcast DTV than in analog). is losing viewers. The benefit for the station of transitioning q includes labor, rent, capital, costs, and other non-power i ELETE D F D . See The action OT 151 N O refer to switching on or before February 17 as switching “early.” on or before February 17 as refer to switching Viewership may be affected by the decision. If station early, assume that there is a chance that something goes wrong with the the station loses fraction transition, so that when switching to continue analog broadcasting only fixed costs C price of electricity, and characteristicsof technical function ofantenna, and cooling the tower, systems used. where (action turn off analog on February 17, 2009 broadcasting and original electricity station aside the fact that fact that aside the 148. transition. will be unaffected by the We assume that ad prices per viewer To be precise, 149. 147. are largely proportional to a DMA and daypart advertising prices within Broadcast the Nielsenshow point measures (which rating of a viewership). Negotiations between can lead to stations advertisers and maximize its pr its maximize only two stations, labeledtwo stations, only Each1 and 2. D 474 engineering details of the two options facing the station. In other words, for purposes of our of our In other words, for purposes station. the facing two options of the engineering details modeling we take 150. the space of about a week before February which needed to be finalized in transition that the We are also assuming decisions, probability of losing of its current actions of its current profits by advertising selling at rate advertising is incorporates all known changes in all known incorporates no economic switching since cost, every station was supposed to be ready to switch in February and the FCC justify switching on February 17. decision was to be made, switching costs were decision was to be made, switching the possibility that the superior quali action early is the power savings: station’s latter action, the because
30555_cdt_9-2 Sheet No. 74 Side B 08/09/2011 09:04:54 B 08/09/2011 74 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 75 Side A 08/09/2011 09:04:54
. ) ' A PM PM
(4) ( i C 5:13 . This
– d ) if and 0 i D pq ) = A factors constant. ( i S 475 be therefore , can i a is is mber of viewers for i )], the cost savings from ). The decision rule for ) if it switches to DTV. OULETTE d D R D ( ) (1) (1) ) i i ( i earlyits the lower is ) (2) (2) ) x i a 0 ( ATE ATE C a i i ( the other station. q D i i agent setting—in this case, the ) – (3) C I – 0 i − A 0 i
wx ( q i ) q − i x ) , the expected lost revenue from 0 i i a + 0 [ i i ( q I i ) =
F w RANSITION rstood holding other A pq T i pq
( ’ , given its action action its , given i ) = I = i i ) = 1 – i D ' ) = a ( i p( i ( ODEL i a = i ( i d M S ) = denotes the expected nu i D ROADCASTERS q ( i B S HE , of station , of or expected decisions of S ) outweigh the expected costs ( HEORETIC ' . This condition states that the benefits of transitioning (the (the . This condition states that the benefits of transitioning T i 8/1/2011 '
during the transition period. We assume that the stations are duringthe transition the stations period.assume that We i This implies that higher energy cost savings from transitionThis implies that higher energy make the decision to transition early more likely. implies that a lower probability of losing viewers and a lower amount of advertising revenue potentially lost make the decision to transition early more likely. i AME ELETE d D The empirical implications from the decision model are: Each statement is to be unde Each statement The profit,The Given the function, we profit can now examine a station’s decision The game theoretic approach to law and economics emphasizes the OT N O M K 1. is more likely to transition A station early the greater is its 2. A station is more likely to transition switching to DTV, in the absence of strategic considerations,of switching to DTV, in the absence merely has the firm comparing its own costs and ofbenefits switching, of regardless the characteristics to switch to DTV. The expected payoff for station cost savings if it stays analog, or We explore these implications in the following empirical sections. IV. G interdependency of payoffs in a multiple expressed as: expressed where C In equations (1)-(4), In equations (1)-(4), q q channels enabled by DTV enabled channels increase would viewership. D 2011]T station risk neutral. turning off analog. A station decides to switch early (action turning off analog. A station decides only if For convenience,define transitioning early, and define C Y 30555_cdt_9-2 Sheet No. 75 Side A 08/09/2011 09:04:54 A 08/09/2011 75 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 75 Side B 08/09/2011 09:04:54 M K
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In ) ABLE 152 A 1:18 C
, as in , as in ( 1 1 ) &
' C .
D ( )– (5) (6) 1 0 1 (7) (8) 2 g the model by g the model C d q ROAD 2 1 (1994). (1994). 1 – B I 0 1 cted few over-the-air bscribing to cable; + AW q L 0 p 1 stations’ If actions.
ion are picked up by up by ion are picked (q expects that station 2
p both . [Vol. 9 [Vol.. Too Early to Say Whether DTV is to Say Whether Too Early examine a station’s strategic ) if and only if transition by su
) also switch early only if if and i 0 i D a q
( ) i 0 0 HEORY AND THE AND HEORY THE j i s to 1 in the first column of the D q q T j C i ( ) = ” to cable instead of going to the other station station to the other ” to cable instead of going industry observers expe 1 I − I ) , Mar. 23, 2009, at 8-9. Nielsen estimates that Nielsen estimates that at 8-9. 23, 2009, , Mar.
), then (comparingpayoffsthe in the D C ) , j A s stay analog or both switch, there is or both switch, s stay analog n depends on on n depends + − ( AME AME D a – 0 0 1 , D i i i AILY G ( Virgil Dickson, Virgil Dickson, 0
q q i C a 1 ., D ( AD q i q see – ) is now a function of both its and its a function of both is now viewers leaving the stat viewers leaving If, instead, station 1 If, instead, 0 1 i ) = ) = NS 0 pq ’ 1 i I ) = A q D q , i , A p
, ) = A D j I ( A 1 – ( a i i J. L ON TECH. HIGH & TELECOMM. ( ( , for a statio for OMMC i i q q AIRD ET ET AL AIRD p q _After_Early_Post_DTV_Decline.php. Modifyin q a B (
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A D Nielsen: Viewing Rebounds After Early Post-DTV Decline, Post-DTV Decline, After Early Rebounds Viewing Nielsen: 6/21/2011 OUGLAS OUGLAS D ), then (comparing the payoff switches to DTV switches station when the other early continues its i A ELETE . If not, then the expected benefits to station 1 of letting station 2 1 D . See If station 1 expects that station 2 will choose to stay with analog The profit of station The profit Given the profit functions, we can nowGiven the profit functions, we can ' OT 152 N < O 2 John Eggerton, opponent’s actions: opponent’s actions: analog broadcasting, the where d the decision theoretic model. will choose to switch early (action second column of the matrix) 1 chooses to assuming that a constant fraction of viewers “leak of fraction that a constant assuming would change none of the predictions of the model. of the none of the predictions would change the game, viewershipthe game, station about one-fifth of over-the-airabout the viewers readied for (July 23, 2009), http://www.broadcastingcable.com/article/316241- 2009), (July 23, Nielsen_Viewing_Rebounds the other station. the other
1’s profit fact that one station’s one fact that the other on profit depends decision. station’s D 476 Station viewers to switch to cable or satellite; or viewers to switch to cable to DBS Consumers Pushing satellite cable or we assume there is no leakage of viewership to For simplicity, 153. transition, Around the time of the television. (action matrix) 1 chooses to switch early (action no change in viewership. no change incentive to switch to DTV. The payoff matrix for station 1 is: Station 2’s Action 2’s Station 30555_cdt_9-2 Sheet No. 75 Side B 08/09/2011 09:04:54 B 08/09/2011 75 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 76 Side A 08/09/2011 09:04:54
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if and if and and its and D RANSITION RANSITION the best ' T . The various
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DTV , D provides additional an implication ; if station 2 plays 1 RIEGER P RANSITION '
the implications we wish to test. Note
migrate to station 1. T
’ E. other stations’ viewers at risk are what viewers at other stations’ 1 d SPECTS OF THE om a variety of sources. om boil down to four cases fo cases four to down boil AMES AMES A J
& ROADCASTERS B HE XAMINATION OF THE ILLER E TRATEGIC TRATEGIC M S . The decision facing. The decision station 1 . This implies that a lower expected number. This implies that a lower expected of the if and only if
: d ) would outweigh) would of costs the D 2 ' d AMES AMES 6/21/2011 1. Stations’ Decisions and Characteristics J 2 d see transition early the greater the difference between its rival’s viewers potentially gained (or the advertising revenue from those viewers) make the decision to transition early more likely. ELETE , play OULETTE MPIRICAL D R A A. Data A. Data The best responses for stationnow be summarized: 1 can 2 if station In this section, we ondescribe the data we collect the U.S. broadcast To analyze stations’ decisions and test the implications our of The stations’transitionfrom FCC reports The decisionsare taken 3. When its rival switches to DTV, is a station likely to more 3. OT N ATE ATE O M K television market and test the predictions of the models. economic plays matters for its decision; if something goes wrong with station 2’s station with wrong something goes if for its decision; matters transition, some of its viewers will responses.of best considerationsand results in a similarset While one find the Nash equilibrium of thecan proceed to game, would staywould with analog. response the best this case, In of 1 station is going other station is When the clearly strategic. switch to DTV, to the recognizes that station 1 strategies; stating which stations switched to DTV before February 17, which plannedswitched on that date, and which to switch then but changed permutations the of magnitudes relative sizes of 154. on the depends Nash equilibrium D move firstmove ( D 2011]T not found in the previous model: not found in the previous responses already furnish us with theoretic 1 and 2 from the decision that implications model also apply to the game theoretic model. The game 2009). The economic fundamentals in the market (viewership, costs, and the expected loss of and the expected loss of in the market (viewership, costs, 2009). The economic fundamentals case the market falls. which determine into viewership upon transition) some data come from proprietary although are used, FCC data No confidential 155. as noted below. databases industry models, we gathered data fr models, only if V. E C Y 30555_cdt_9-2 Sheet No. 76 Side A 08/09/2011 09:04:54 A 08/09/2011 76 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 76 Side B 08/09/2011 09:04:54 M K
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OMM C ACTBOOK F N ’ ABLE ations terminating see Index of Media C “cabinet efficiency” in OMMC C
TV and CableTV and Factbook . [Vol. 9 [Vol.. . had before the February ED , the change in the cost of i sponses to Requirements for Analog for Analog Requirements to sponses
as the input power required ELEVISION AND
' , T 156 Our resulting measure is an in the week, averaged over the averaged over week, in the , F Part III.B. Part III.B. included in the count. Sinceincluded in the count. the d peak power and the peak d 158 EWS ssions with staff from the FCC’s Office of Office of the FCC’s from staff ssions with 009) (Feb. 10, 2009) (for st 009) (Feb. 10, 2009) N supra N
’ estimated from public FCC sources. note 145, app. A-C (for which stations were allowed stations which A-C (for app. note 145, OMM See also C supra supra ry 17 and for stations planning to terminate on February February terminate on to planning stations and for ry 17 , the revenue importance , the revenue importance of the viewership at 0 J. L ON TECH. HIGH & TELECOMM. Only in our data. are included full-power stations ARREN pq W 157 FCC Releases Lists of Stations Whose Analog Operations Terminate Analog Operations Terminate Whose of Stations Releases Lists FCC 24 FCC Rcd. 1416 app. A (2 Rcd. 1416 app. 24 FCC
, , the OTA viewership stations , the OTA viewership i FCC Releases Lists of TV Stations Re of TV Lists FCC Releases q 6/21/2011 see generally ELETE D . See generally generally . See The local viewing market, the state of location, state of the market, local viewing The affiliation network We also gathered data pertaining to Public Notice ee generally OT 156 N O to actually terminate on February 17). to actually terminate on February Termination on February Termination 17, 2009, are and database subscription the online from viewership are 157. All variables except Viewership is from the 2008 printed copy of current as of the decision time (February 2009). the Factbook; the electricity one input. We make change from the theoretical model: in DTV by February 2009, since most stations were already broadcasting a station comes from turning the change in the energy bill for off the analog transmission. The change inrequirement from the power completing the switch to DTV (measured for the analog transmission) is Viewership is measured as the number is measured as Viewership households of noncable viewing at least once the station who watched Nielsen’sweeks of sweeps month. Viewing households outside the home if any exist, are DMA of the station, householdscount of noncable includes subscribers to alternative distribution systems such by multiplying as satellite, we adjust viewership the figure by the fraction in noncable viewers that receivethe DMA of programmingover the air (OTA). Bureau CDBS Public Database Files Public Bureau CDBS 17, on February Operations Analog Terminate Intend to or that 17, 2009, Before February 2009, 2008 (2007). 158. 2011). visited May 13, http://www.tvb.org/ (last are for February 2009. and TVB.org, of Advertising website, Bureau are from the Television The latter variables 159. be found and analog antenna can digital Database System (“CDBS”); a station’s Media Bureau Consolidated The peak power transmitted by from the FCC’s their decisiontheir in response to FCCaction. D 478 proprietary database.proprietary of a station, and viewership is from Warren’s is from and viewership of a station, estimate of 2009 decision period. In the estimations we multiply the latter In the estimations we 2009 decision period. viewership variable by the ad price per viewer (described in the next section), to measure http://www.fcc.gov/mb/databases/cdbs/ (last visited Jan. 27, 2011). For analog stations, this stations, this For analog Jan. 27, 2011). http://www.fcc.gov/mb/databases/cdbs/ (last visited total peak power also includes aural transmitted. However, visual power only the includes power. Furthermore, to find the prime (input) power requirement must for broadcasting, one also consider the relationshipbetween average an discu Based on power to RF. converting input VHF ratio was 0.2 for power aural/visual assumed that the Technology, we and Engineering analog broadcasting before analog broadcasting Februa 17); s stake. 30555_cdt_9-2 Sheet No. 76 Side B 08/09/2011 09:04:54 B 08/09/2011 76 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 77 Side A 08/09/2011 09:04:54
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)/0.7 )/0.7
x
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2009, at 108, 2009, at + 0.1
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, , Existing Television Existing The product of The N ’ for analog transmission 160 479 = (0.37 y are substantially similar toare OMM C ONTHLY M OULETTE R N ’ Market Structure, Viewer Welfare, and ATE ATE Television Stations Having Significant Significant Having Stations Television D OWER y price for the y price for on Recon of the Seventh R&O and Eighth Eighth and R&O the Seventh on Recon of P
OMMC C the broadcast of the station when binet efficiency was 0.7 stations overlap fully with each other RANSITION The second variable is an estimate of /0.5 for DTV stations. DTV stations. /0.5 for T While a station’s footprint does notWhile a station’s
’ x LECTRIC ms and Their Impact on the Their Impact and ms 161 163 try and in academic research. academic in and try = , which is the expected fraction of viewers , which is the expected y i ., E ., al broadcast was expected to al receive from broadcast I , the assumptions imply that our estimate of prime power, estimate of prime , the assumptions imply that our EDERAL EDERAL x our estimate the cost savings of per hour of DMIN al retail electricit al retail ROADCASTERS A
B . , F )/0.7 for NTSC (analog) VHF stations, VHF stations, )/0.7 for NTSC (analog) located in the metropolitan area. DMAs HE x
NFO u I Keith Brown & Peter J. Alexander, Memorandum Memorandum Opinion and Order + 0.2 x
6/21/2011 NERGY NERGY u 2. Market Information 2. Market Advanced Television Syste Television Advanced E ELETE D . Archive of Map Book for Full-Service Digital Digital for Full-Service Book Map . of Archive . See . See . See generally . See Two variables relate to We take the relevant market a station to be the Nielsen for DMA in , 23 FCC Rcd. 4220 app. B (2008). B (2008). 4220 app. Rcd. , 23 FCC = (0.37 OT y 162 160 161 164 N O , is M K Changes in in Coverage Changes Broadcast Service, Broadcast R&O for NTSC (analog) UHF stations, and stations, for NTSC (analog) UHF
the loss in population covered by switching to digital transmission is publicly available from the FCC for some stations, less and it is known to be 2 percent than rest. for the exactly match not all a DMA, and within a DMA, the DMA is the standard market definition for indus in broadcasting television 2009, from the Energy Information Administration. the Energy Information 2009, from the Standard Metropolitan Statistical Areas (“SMSAs”) defined by the Census Bureau. There by the Census defined Statistical Areas (“SMSAs”) the Standard Metropolitan are 210 DMAs in our analysis. tbl.5.6B. tbl.5.6B. and 0.5 for DTV, and that average visual power is 0.37 times peak visual power for analog visual power for analog is 0.37 times peak power average visual and that for DTV, and 0.5 latter consideration is irrelevant for (the transmission DTV). with the “peak power Starting transmitted” found in the CBDS, y stations and 0.1 for UHF stations, that the ca that the stations, UHF 0.1 for stations and The data needed to estimate to data needed The thepower requirement analog for broadcasting of percent about 74 only for is available commercial stations, size reduces the sample which of estimations including this facingThe price of electricity variable. the is taken to be each station commerci state average D 2011]T http://www.fcc.gov/dtv/markets/report2.html (last visited Jan. 27, 2011). The data on data The 2011). 27, Jan. visited (last http://www.fcc.gov/dtv/markets/report2.html showed that more analysis FCC which for the 319 stations available for covered is population service would not be analog than two percent of the population covered by the station’s covered by its digital service. Nielsen Media by area defined Market Area is a geographic The Designated 163. audience major viewing comprising the of counties group is a DMA Research Company. Each stations for the television lost because of the transition. The released estimatesFCC of the digit interference a station’s in other broadcasts the area, and we the fraction use of the DTV so affected. broadcast footprint broadcasting from turning off analog transmission. the latter twothe latter is variables which the station is licensed. C Y 30555_cdt_9-2 Sheet No. 77 Side A 08/09/2011 09:04:54 A 08/09/2011 77 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 77 Side B 08/09/2011 09:04:54 M K
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T / V 331, 331–337 331–337 331, = viewing TV = 100 V r . Since one ratings and from the the from and sr 167 = ETTERS ETTERS A L
. SRDS Media Solutions Media SRDS in the data, and usein the data, and to them CON . [Vol. 9 [Vol.. T x coupons at the timex coupons of the and iables from Claritas and ad from Claritas iables s which are available only for a , 86 E 86 , CouponWait and Household List By DMA
e are derived from the CPP as follows. Let that cannot. For a completely unready that = Nielsen rating points, points, Nielsen rating = of TV households, we have See r nd present for the summary statistics , TVB (last visited Aug. 21, 2009). 2009). (last visited Aug. 21, TVB , = ad price. The CPPs, when CPPs, when relevant Themultiplied by the = ad price. A . We observe both Television Markets Television T We supplemented this primary source with Two variables are available: the fraction of / s 165 169 J. L ON TECH. HIGH & TELECOMM. For use in DMA-level analysis, we calculated a = SQAD CPP, SQAD = (Jan. 22, 2009). 2009). (Jan. 22, s 170 t of the total number t of the total number = 100 V / (last visited Jan. 27, 2011). 27, 2011). visited Jan. (last sr IELSEN IELSEN = p , N IELSEN We also collectedWe also data fromNielsen a report of on the state . 6/21/2011 = TV households, and TV households, = p 1. Market Level Analysis , N 168 Local Television Market Universe Estimates: Comparisons of 2008-09 and 2009-10 and 2009-10 2008-09 of Comparisons Universe Estimates: Market Television Local 5.7% of U.S. Households – or 6.5 Million Homes – Still Unprepared for the Switch to to Switch for the – Still Unprepared 6.5 Million Homes Households – or of U.S. 5.7% T Local Cable Reach Guide Cable Feb ‘09 Local Rates in Local Broadcast
ELETE See , we have: have: , we D . See . See 5-15(Feb. 16, 2009). 16, 2009). 5-15(Feb. B. Empirical Results B. Empirical V
We conducted our analysis and individual at two levels: market We begin with a summary of the market-level transition decisions. DMA levelDMA the from collected were variables / OT A 166 169 N O = = ad price per viewers, = ad price per thus calculate thus calculate Market Ranks the digital transition. p point represents one percen point represents before, on, and after February 17, a of these variables in Table 3. On 210 observations (one per DMA) switched on February 17. stations average in a DMA, 25 percent of database, which includes demographic var demographic includes which database, price data from SQAD.price data small subset of DMAs. DTV “readiness” just before the transition,DTV “readiness” from TVB on thefrom TVB number of OTA-only households, household, no television sets can receive DTV programming. sets can receive DTV programming. no television household, able to household the one television in at least 170. have households Partially unready receive DTV programming and one television households that are completely unreadyhouseholds that are and those partially unready for Data are for February, 2009, taken from the Television of Advertising Bureau 167. website. NTIA (2005). (2005). the previous 165. DMA in the (“CPP”) are the SQAD Cost-Per-Point ad prices The usThe ad prices per viewer that we quarter (4Q08). p households, Nielsen rating points, average yield the ad cost inand the DMA, so 168. are from their The NTIA data website. Advertising D 480
Digital Television station. Summary statistics for the data are in 2. Tables 1 and within each DMA that transitioned We calculate the fraction of stations weighted average electricity(see price above basedfor source) the on spans states. located in each state when a DMA number of stations NTIA on the bo for DTV converter waitlists transition. data from Nielsendata from in each DMA, of TV households on the number 30555_cdt_9-2 Sheet No. 77 Side B 08/09/2011 09:04:54 B 08/09/2011 77 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 78 Side A 08/09/2011 09:04:54 PM
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form in Figure 2, 481 OULETTE (i.e., no subscription R bothcases, particularly the weight of the distribution is ATE ATE D These measures of market size relate to market characteristics, wo of the eight stations in an eight stations wo of the of the correlations may suggest, -axis. Although we will mention oretical models, the presentation 171 y ready switched before February 17, before February ready switched no station transitioned early, and inno station transitioned For example, in the median DMA, For example, in RANSITION T
’ sults are in graphical household head. For the youngest and oldest ROADCASTERS B from the theoretical model, so finding that larger d HE in 0 q 6/21/2011 ELETE D To characterize how the decisions Panel (a) of Figure 2 shows that switching early is negatively In panel (b), we show that early switching displays a U-shaped For eachFor statistic, the medianis than lower the mean, implying that OT N O M K correlated with the size of the market, whether size is measured by the number of stations, the number of households with televisions, households receiving OTA-only broadcasts television), total households, or the adult population in the DMA. All but the first correlation are significant. are proxies for the of significance the statistical color graphs indicate on the darker the 171. Bars in at the 5 percent level. correlation coefficient we calculate coefficients between the correlation fraction of stations switching early (on or before February 17) and a host of demographic The re variables. and economic with the correlation coefficient on the However,percent 28 on average stations of desired on February to switch 3 percent about 17, so wanted toswitch but changed their in plans impositionto the FCC’s response ofadditional requirements. On 13 percent ofaverage, al stations had on total of 38 percent giving a before switched on or average that that about t 17. This means February average DMA February switched on 17, one switched station before that, and theremaining untilwaitedfiveoff analoglater to turn no station switched, and where are some markets broadcasting. There all switched early.other markets where In which results are in accord with the the D 2011]T latter, these are usually markets with few (or even only a single) stations. not symmetric.the distribution is toward the low end (representing not switching early). is for descriptive purposes only. Some one of five stations switched on February 17 and only 33 percent transitioned early. The full distribution is shown in Figure 1. This that in 31histogram shows markets, the 13 markets, all did. In the middle range, but none implies, causality because the pairwise correlation coefficients do not control for other factors. markets show less early transitioning is in accord with empirical is in accord with transitioning show less early markets implications 2 and 3 from the models. Note that with data market-level we cannot distinguish between the decision theoretic and game theoretic models. correlation with age of the C Y 30555_cdt_9-2 Sheet No. 78 Side A 08/09/2011 09:04:54 A 08/09/2011 78 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 78 Side B 08/09/2011 09:04:54 M K C Y PM
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listed the is highest p 172 -after advertising -after advertising . Thus, implications 2 implications . Thus, I . [Vol. 9 [Vol.. 3.1% of U.S. Still Unready 3.1% Homes
most sought after,most sought perhaps these desirable demographic demographic these desirable See we find. Early switching is also the case, no correlations are are measures of lack of readiness rrelations and ethnic with racial while it is negative for the middle the middle for it is negative while as a fraction of number of TV the negative. After Boomers and Gen two measures for of “unreadiness” early transitioning. High-income serve as proxies for as the most sought as the Therefore, this finding is also in accord with (May 1, 2009). 1, 2009). (May 174 J. L ON TECH. HIGH & TELECOMM. IELSEN proportions of viewers in proportions of viewers , N and were more than twice as likely as whitesand to be unready Not depicted in Figure 2 correlation with is the electricity 6/21/2011 173 175 http://www.andersonanalytics.com/newsfiles/20071127.pdf. http://www.andersonanalytics.com/newsfiles/20071127.pdf. . ELETE D . Id Finally, we look at in correlation with ad prices (f). panel In panel (d), we lookIn panel (d), we at the co We next look in panel (e) at several variables associated with OT 173 N O Group Executives Networking Marketing 172. Analytics, See Press Release, Anderson 2007), 27, (Nov. 2008 for Marketing Trends Top Survey of Annual Releases First (MENG) at available ages. While this may merely be may merely While this ages. an artifact of the data, the is relationship Given that one smooth. remarkably recent marketingsurvey age categories, correlation is positive, is positive, correlation age categories, D 482 174. households. transition, compared to 4.1 percent of white for the were unready households TV 8.5 percent of Hispanic 2009, 1, February As of for Digital Transition negatively correlated with Nielsen’s and 3 predict the negative correlation transition, the percentage of partially and completely DTV-unready households. Only the latter is significant, but these provide further evidence in accord with the models. Implication 2prices will predicts that higher ad be associated with less early transitioning. Although that is significant. expected fraction of viewers from lost transition. Transitioning early is negatively (but not significantly) correlated with the number of coupon requests, households, and OTA-only households on the NTIA waitlist at the time of the transition (all taken households in the DMA). Since these for the DTV transition,they X’ers, Hispanics are theX’ers, Hispanics are third most sought-after demographic group for advertisers, in areas with large groups. Similarly, that panel (c) shows the highest income brackets also display correlation negative with viewers ingroups are also valuable terms of ad sales. composition.fraction of correlation is with the The only significant population that is Hispanic, which is 175. which are Prime daypart, Access (6 - 7 PM), Prime (7 - 10 The ad prices are split by demographic, and Generation X and Generation demographic, as the next Baby Boomer generation Baby Boomer negative correlationsthe significant for groups reflect broadcasters’ these fears of losingthese high-value viewers. is This the interpretation price ad presumably 3, since and by implications 2 suggested for the DTV transition. implications 2 and 3. 30555_cdt_9-2 Sheet No. 78 Side B 08/09/2011 09:04:54 B 08/09/2011 78 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 79 Side A 08/09/2011 09:04:54 PM
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Figure 177 We begin with 176 guish between the guish between the 483 n most others, switching OULETTE R ATE ATE the DMA is not significantly is the DMA D ore, to distin although to the extent that local to the extent that although analysis must be conducted at the be conducted analysis must results, while consonant with the results, while consonant ns broadcasting at the time of the early than average (44 percent and RANSITION T
’ tter is an average over DMA’stter is an of the fraction within case for the causal impact ofcase for the causal any of these cisions. Furtherm ROADCASTERS S. states and Washington, D.C. B were more conservative tha HE a. Preliminary Analysis a. Preliminary 6/21/2011 2. Individual Stations’ Decisions Stations’ 2. Individual ELETE D Table 2 and Figure 3 show that 36 percent of the full-powerTable 2 and Figure 3 show that We turnthe decisions now to our data on made by individual In summary, of the DMA-level the analysis shows that stations data OT N O M K regression framework to better identify which potentially causal factors matter. preliminary analysis of the stations’ decisions, and then consider a and then consider preliminary of the stations’ decisions, analysis stations transitioned early,or beforeswitching February on 17. stations. There are are 1,740 stations we analyze, which full-power the commercial and non-commercial statio transition in the 50 U. decision theoretic model and the game, game, and the model decision theoretic level of station. the the DMA (an [unweighted] average of an average). variables on stations’ de variables on stations’ AM). PM - 12 (10:30 Late Fringe and (10 - 10:30 PM) PM), Late News data. the FCC 176. in appear although they in our data, Virgin Islands the U.S. and the stations from Puerto Rico, Guam, We do not include 177. simplestations,a average of is and the la former percent because the of 38 figure in Table 3 differs slightly from the The figure implications of the economics modelsimplications of the of the stations’ decision-making, Given the correlationrequire further exploration. among many of the variables,market and demographic multiple regression techniques are a stronger required to make correlated with the transitioncorrelated decision, economic conditions it might the model suggests local ad prices, affect be. likely to switchwere less DTV-only to broadcasting markets where in the cost of losing and where households viewers was higher were less ready for the transition. However, such prices, whichprices, with implication in accord positive, is and is small 1 but in rate The unemployment insignificant. D 2011]T 3 reveals considerable variation among networks, however. The three traditional networks early only 30-33 percent of the time. FOX and the CW were about faraverage, while Ion and Univision were below average (16 percent and 17 percent, resp.). PBS and stations in the “other” category (independents, non-PBS public or educational stations, and niche networks) were more likely to switch C Y 30555_cdt_9-2 Sheet No. 79 Side A 08/09/2011 09:04:54 A 08/09/2011 79 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 79 Side B 08/09/2011 09:04:54 M K
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(Feb. 9, (Feb. 9, is the is ILLIAM ) AGE W P See See
stribution and LOG 178 = 1 (i.e., on the B
y . ), where of a regressor is the E ECH e station and market e station and market x T in the sample, using discrete in the sample, using ( e two differ. We compute the . [Vol. 9 [Vol.. takes the value 1 if the ) y id advertising generate to the expected revenue cost of revenue cost of the expected errors) rather than the (less on decision by of the quartile TATIONS S be less likely to turn to other to other to turn likely be less to the unique nature of public theory and stronger evidence for for continuous regressors. for continuous regressors. marginal effect e standard normal di = 1 is
early: only 10 early: only did so. The percent y 180 such as probit, th such OMETOWN on the probability that r the stations they owned.r the stations they switch early on th x § 19.3 (4th ed. 2000). 2000). (4th ed. § 19.3 , H as the average marginal effects the average marginal as J. L ON TECH. HIGH & TELECOMM. NALYSIS The dependent variable A coefficients. The 179 b. Regression Analysis Analysis b. Regression , the probability that 6/21/2011 x Network Owned Stations Owned Network for binary regressors and derivatives binary regressors for CONOMETRIC CONOMETRIC
x E
ELETE , D . See In Figure 4, we break out the transiti
All estimationsa binary with are probit regression models In the last part of this section, we present the results from several OT 178 N REENE are the regression O effect of a one unit change in probability that early). In Tables 4 and 5, we present a station switches standardeffects (and their the marginal informative) regression coefficients. cumulative distribution function of th distribution function cumulative changes in marginal effects in the tables in the marginal effects 2009, 07:36), http://www.wlio.net/index.php?m=02&y=09&entry=entry090217-073628 http://www.wlio.net/index.php?m=02&y=09&entry=entry090217-073628 2009, 07:36), that switched were owned by the O&O’s of 2009). Most Brief of Feb. 6, NAB Smart (citing ION and TBN. and “margins” with the “probit” 11, Stata are estimated using The regressions 179. commands. ordinary model, the marginal effects are simply the In the familiar least squares 180. regression coefficients. In nonlinear models G E 40 percent, resp.). PBS does not rely on pa not rely does PBS resp.). 40 percent, D 484 mayits viewers and revenue, station shouldnetworks arise problems due programming. Thus, in terms of the models, transitioning is probably lowerfor a PBS may explain station, which why so many of O&O Finally, the network to switch early. them wished stations very were unlikely to switch delayto CBS, Fox, and NBC/Telemundo agreed networks ABC, all their DTV transition to June fo station transitioned early (or wanted to, depending on the estimation, as estimation, dependingon the stationwanted to, transitionedearly (or described below), and is 0 otherwise. In a probit with a vector of model regressors the size of the television market (based on Nielsen rankings of TV on Nielsen rankings of television market (based of the the size largermarkets). As expected, markets are associated with a lower probability of switching early. characteristics. The regression models allow us to hold constant other factors, allowing cleaner tests of the (although not proof of) causality. dependent variable. regressions of the decision to 30555_cdt_9-2 Sheet No. 79 Side B 08/09/2011 09:04:54 B 08/09/2011 79 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 80 Side A 08/09/2011 09:04:54 PM
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modeled above, modeled 485 do not use the station- the game the game OULETTE R the DMA has a negative in the theoretical models, we ATE ATE ze of the market at risk, as stations in the market. Given D If this form of risk aversion is The marginal effect of -0.67 for fraction of television households (as measurednumber by the of ctation concerning its sign. The only TV households inonly TV households the DMA, models to control for heterogeneity related to the racial composition, to the racialrelated Although the models above suggest RANSITION aphic variables are included. We use variables are aphic T in the model instead of total television
’ q ns, in Table 4, the dependent variable is 1 not strategic players in ROADCASTERS B HE 6/21/2011 ELETE D two estimatio In the first 1. of Analysis All Stations’ Decisions In Estimation 1 Table in 4, the si We also control for the number of The coefficients for the network variables are in accord with the In accord with our models and the results In accord with our models and the discussed above (see OT N O M K D 2011]T the results from Estimation 1 are meant to be descriptive only. 1 are meant to be descriptive the results from Estimation if the station actually transitioned actually transitioned if the station early, regardless earlier of what its plans were. Estimation1 includes all stations, including noncommercial stations and those, whichhad already transitioned before February 17. theGiven that latter are impact, in line with the notion of risk aversion, but it is not statistically significant. We do not include this variable in the following estimations. discussion of Figure market size 2(a)), OTA-only householdshas a large, in the DMA) significantly negative impact on the decision to switch early. the OTA households variable, which is denominated in millions, implies in the DMA is associated with a that an extra million OTA households 67 percentage point decrease in the probability that the station switches early. The fraction of OTA-only viewers in measured bythe number of OTA- and demogr network indicators, OTA-only households to proxy in the DMA that are OTA-only. that only the number of OTA viewers matter, not the proportion of viewers that are OTA-only, we include it to account risk for possible (the phenomenon ofaversion on the part of the station shying away when “too many eggs are in one basket” ). that we do not vary the number of stations econometricthe add this variable to households (which includes cable and satellite viewers) because OTA includes cable and satellite viewers) households (which at riskviewers are the ones of switching to another station if problems we 1, the transition develop. In Estimation with for noncommercial variable, because it is not available specific viewership stations. A second variable captures the thenpresent on the part of the stations, even after controlling for the fractionlevel of OTA-only viewership the OTA viewers will have an of additional negative impact on the likelihood of switching early. among markets and have no expe demographic controls included are ethnicity, age, and income in the DMA. ethnicity, age, and income in the DMA. C Y 30555_cdt_9-2 Sheet No. 80 Side A 08/09/2011 09:04:54 A 08/09/2011 80 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 80 Side B 08/09/2011 09:04:54 M K C Y PM
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The Invisible Asian- The Invisible is an O&O it is 26 O&O is an . [Vol. 9 [Vol.. r example, one would not Michael Hong, Michael see see mit the sample to commercial implies that an extra percentage implies that an extra assumed that stations are run households. Since these variables are Since these variables households. the number of commercial stations in note 172. Asian Americans have also been called have also Americans Asian 172. note equal, if a station a station if equal, denoted “OTA revenue/ad” viewership in ther higher ad prices per viewer or morether higher ad prices per viewer or supra , 78 (2005). 78 (2005). but more likelybut due to the outlying observations -screen in broadcasting; in broadcasting; -screen J. L ON TECH. HIGH & TELECOMM. 181 ABLE ct loses statistical significance. significance. ct loses statistical C
&
. see PressRelease
182 ROAD 6/21/2011 , 135 B , 135 ELETE . The coefficient for the Asian group is positive, possibly for the Asian group is positive, . The coefficient D Decisions: Actual Transitions Actual Decisions: In Estimations 2 through 4, we li 2. Analysis of Stations’ Commercial OT N O 181. demographic groups; after sought highly the Asians among not rank did report cited above The marketing Americans results in Figure 4. The largest impact among the network variables is for in Figureresults is for variables network among the impact largest 4. The things Other O&Os. network to switch points less likely percentage early. Consistent with the of and the implications DMA-level analysis we found in the correlations the model,Hispanics, significant negative we find for the coefficients group,prime age and high-income the marginalproportions, increasearepercentage the effects (in points) the in the regressor. For example, point increase of a one percentage marginal effect of -0.40 for Hispanics D 486 point of the DMA population that is lowersHispanic the probability DMA switches earlythat a station in the points, by 0.4 percentage paribus indicating that advertisers perceive them to be a less-desirable demographic segment, of fraction has a DMA Honolulu and the switched early, stations All Hawaiian 182. sample, the from dropped is Hawaii If DMA. highest next the as as high is twice that Asians effe marginal Asian then the from Hawaii. the “invisible” demographic on stations. The models above tacitly commercially for profit, and the profit calculus fornoncommercial commercially for profit, and the profit stations (chiefly PBS stations) may differ. Fo expect ad prices to matter PBSfor and educational stations, and including noncommercial stations in the sample would partially obscure the impact of regressors involving ad prices.the following In estimations, we replace the DMA-level market size with the station-specific variable for the OTA viewership (which is available commercial only for stations), multiplied by the advertising price per viewer for a local prime time ad. The latter variable, ad (in $1000s) at risk from the Tables 3 and 4, is the revenue per transition. Empirical implication 2 from the models suggests that higher ei ad revenue at risk (due to ofviewers) should decrease the likelihood switching early. We also replace the count of stations with Estimations 2 through 4. 30555_cdt_9-2 Sheet No. 80 Side B 08/09/2011 09:04:54 B 08/09/2011 80 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 81 Side A 08/09/2011 09:04:54 × PM PM
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station that stations backed Electricity Price 487 are about the same in are about the same OULETTE R Power ATE ATE × D of $1,000 corresponds to an increase of an increase to corresponds of $1,000 unced earlier. Any influenced by regulatory decree decision made to transition early, strategic aspects of the decision as bles in Estimation 3 pertain to the Thus, when the opportunity of cost removed from the sample, since its final week and some final week and some RANSITION 183 ns 3 and 4 (Table 5). The dependent tions, we further refine our dependent neither faced the decision problem nor faced the neither T
’ in Tables 4 and 5. Due to the skewed in Tables 4 and Power Electricity Price avings, it enters the regression in log form. In × ROADCASTERS B is negative and highly statistically significant, as significant, statistically highly and is negative and and HE OTA viewership revenue/ad 8/1/2011 Electricity Price ELETE D implies that when the regressor doubles (a 100 it percent increase) Decisions: Desired Transitions Desired Decisions: Since we want to focus on the 3. of Analysis Commercial Stations’ The impacts of the variables included in Estimation 2 pertaining to Also new to Estimationsvariable 2 through 4 is a pertaining to the In Estimationalso 2, Table in 4, the marginal of effect OT N O M K Estimations 2 and 3. The new varia one-third of a standard deviation of this variable. of this variable. standard deviation of a one-third 183. in An increase D 2011]T Estimation 2, we find a positive and statistically significant coefficient for as expected from empiricalthe power cost variable, implication 1 from effect of 0.042the models. The marginal for the log of nature of the cost s power Power increases the probability early by of switching 4.2 percentage points. operating costs rises, reduced from Thus, when the benefit to switching stations are more likely to switch. modeled above, rather than outcomes apart from direct profit considera variable and sample for Estimatio variable in these estimations is the before the FCC intervened in the transitioned before February 17 is away from their plans they had anno away from their plans they had decision was already made and it above. There are still over 800 played the strategic game modeled stations in the sample for Estimation 3. the stations’ benefits and costs from switching are similar in Estimation 3. That is, the significance and magnitude of of the marginal effects viewership revenue/ad switching lost viewers rises, of potentially the financial impact from stations are significantly switch early. less likely to stations’ benefits from switching.the power savings We include from turning off analogmultiplied transmission by electricity the price, denoted viewership revenue/adviewership bysuggested theory. the The marginal effect of -0.21means that when for the station by one rises viewers OTA from ad per the ad revenue dollarsthousand ad, the likelihood per switchesthe station early falls by about a fifth point. of a percentage C Y 30555_cdt_9-2 Sheet No. 81 Side A 08/09/2011 09:04:54 A 08/09/2011 81 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 81 Side B 08/09/2011 09:04:54 M K
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% Pop. lost lost % Pop. , a station’s The spline j d 184 in theory the with a lower i I ning to the first danger of losing potential analog in this region, the note 180, § 8.2.6. § 8.2.6. 180, note acteristic. We include include acteristic. We supra . [Vol. 9 [Vol.. p part of the spline is to the decision theoretic , ative marginal The effect. REENE DTV the broadcast from other omitted category and allow the omitted category G
3 from the game theoretic model is the fraction of i ore specifically stations whether are the undue influence of a few outliersthe undue influence two and 32 of their analog percent the population, in the regression the population, I e generally associated that when the population losingthat when the population the receive ( a digital broadcast explore variables pertai The game implies that each of these at when the rival switches early, a variable early, a variable switches rival when the at 185 4 three variables that pertain to the variables capturing the J. L ON TECH. HIGH & TELECOMM. eases by one percentage point eases by one percentage observations). The main part of observations). The the spline, for —that is, was a station’s own char i should have the same impact on a station’s decision as if d j . The marginal effect for the to d ). Since the variable is not observed in the public FCC). Since the variable data 6/21/2011 ELETE D revenuewhen early.cost of switching rival Recall that switches the The other variableThe other related to The first three estimations OT N O models). As such, we expect their coefficients to be negative. The first is The be negative. to coefficients expect their we As such, models). a station’s interference with the expected stations ofDMA. The impact in the as is negative the interference in but insignificant expected, Estimations 3 and 4. it pertained to was found to be necessary to remove was found to be necessary (the top 2 percent of stations potentially losing between viewers, has a statisticallysignificant and neg magnitude implies of the effect station’s broadcast incr station’s likelihood of switching decreases by 0.81 percentage points, ceteris paribus likelihood of switching. two empirical implications, which apply equally and game theoretic models. To expl acting strategically, we test implication by including in Estimation positive but not even close to beingpositiveeven close to but not statistically significant. Thus,in accord with the models, viewers during the transition ar 184. see in regression, of splines For a discussion expected fractionexpected of viewers through lost the transition ( D 488 by transition two percent of when it is under spline. to enter as a two-part linear other stations’ variable specification we let those stations be the specification we let variables measuring the average of the OTA viewership revenue per ad,of per the OTA viewership revenue the average variables measuring the DTV the population lost by switching interference, and for the stations in the when the rival DMA. Since implication 3 applies only switches early (because that is the might gain its only way a station viewers), when calculating the averages we include onlystations other that wished to switch early. viewers that would not beviewers that able to rival’s the rival’s loss becomes the station’searly and puts its viewers at risk, 3 suggests th gain. Implication pertaining to 185. early is be switch had to that wanted to stations decision other including after its own only be until objection to would A possible which those not observe would station a that 30555_cdt_9-2 Sheet No. 81 Side B 08/09/2011 09:04:54 B 08/09/2011 81 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 82 Side A 08/09/2011 09:04:54 A PM
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§ 2.2 (3d ed. ed. (3d § 2.2 either the linear ATA D parameters problem”). ance with the previous ance with the 489 ANEL ANEL P OULETTE R are unchanged. are unchanged. validate the results of probit ATE ATE Table 5, with the are in line D NALYSIS OF NALYSIS A tion 4 is estimated with tion 4 is estimated § 11.1 (for the probit fixed effect model). In probit (for the 11.1 § to correct for potential endogeneityto correct rvations from any DMA with no oblem, our conclusions regarding the sign and and sign regarding the our conclusions oblem, it expects the other players to do, and its it efficients (the “incidental (the “incidental efficients are dropped. This reduces the sample RANSITION Estimation 4 for conson Estimation T
’ seeid. as the demographic variables) is absorbed e strategic variables the DMA that affect all stations’ incentives acting strategically, and pay no attention to attention pay no and strategically, acting A viewers the rival stations transitioning on rival stations transitioning viewers the A CONOMETRIC CONOMETRIC r than the strategic interactionswe wish to E
, ROADCASTERS B HE ALTAGI B
H. 6/21/2011 ADI B ELETE D . See (for fixed effect models generally); models (for fixed effect The results in Estimation 4, also in The results in Estimation 4, also If the stations are not are not stations If the
OT 186 N O M K to transition, then the new variables in Estimation 4 will be endogenous to transition,inbe 4 Estimation then the newwill variables in the regression. Such endogeneity would in their rivals’ expectedtheir rivals’ actions, characteristics then of the other in stations shouldthe DMA decision. on a station’s have no impact However, for a clean test of this hypothesis, we need stations’ characteristics.of the other early stations switching Since only are included average in the of other characteristics, stations’ if there are factorsunobserved causal in estimation, by finding a link between rival’s characteristics and the decision of a station to switch that is drivenby the unobserved common rathe factor in the DMA isisolate. Our solution effects to the estimation, to add DMA-level fixed removing thefactors in the DMA. influence of unobserved probability fixed effects model or the conditional logit model (results not shown), neither of not the conditional logit model (results effects model or probability fixed parameters pr the incidental from suffers which marginal effects of th significance of the We use the probit model nevertheless in model We use the probit in Estima the specification estimations. When correlated with unobserved factors common to the unit of observation (the DMA, in our case). probit fixed effects model There is a technicalproperties of the issueasymptotic regarding the co regression of the consistency the that affects chooses its best action in response to what response action in best its chooses correct. out to be expectations turn size to 504 stations in Estimation 4. game theory, suggesting that stations are indeed acting strategically. The more ad revenue from OT into the fixed effects, and any obse variation in the dependent variable is to switch itself. The impactFebruary 17 have, the less likely a station is effect of the station’s own ad revenuelarge (twice as large as the marginal the 1 percent level. Furthermore,at variable) and statistically significant the lower the probability that athe more population lost by rival stations, station transitions early. The marginal effect is again larger than the own-station variable’s impact and is highly significant. The impact of the interference the rival stations are likely to have is negative, in accord with consequence of using a fixed-effects estimation is that any variable not varying within the DMA (such made. However, in the Nash equilibrium of a full information game such as ours, each player each player ours, as such game a full information of made. However, equilibrium in the Nash variables should have negative marginal effects. marginal have negative should variables D 2011]T 2005) by variablesare problems caused that general, fixed effects models remove the endogeneity C Y 30555_cdt_9-2 Sheet No. 82 Side A 08/09/2011 09:04:54 A 08/09/2011 82 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 82 Side B 08/09/2011 09:04:54 M K
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188 twork market, in the probit model are in the probit model the marginal effects 187 . [Vol. 9 [Vol.. e higher or the costs are do, the audience size of variable, highlighting the variable, The signs of the other The signs
i d shows that when a station’s e same sign as in the probit model but sign as in the same e all sides of a ne naturalthat stations intuition cle prove to be useful tools for less obvious) set of results comes Internet access, have succeeded in efforts—when the they understand -value of nearly 0. of nearly 0. -value p Tables 4 andIn 5. particular, the coefficients of e broadcast industry, regulators have e broadcast industry, terest when changing technology promises y statistically significant, y statistically ad price variables that are significant J. L ON TECH. HIGH & TELECOMM. y and consumers on y and consumers rategic considerations. rategic considerations. e interesting (and variable to an ordinal variable taking value 0 if switched after 0 if ordinalvariable taking value variable to an earlier when the benefits ar pact of the corresponding pact of the
variable, thehas variable, coefficient of which th 6/21/2011 ELETE D The models introduced in this arti Throughout the history of th Throughout the history OT N ONCLUSIONS O backward compatibility, and the proper balance between economic balance backward compatibility,and the proper incentives and regulatoryin manysituations. compulsion have arisen Some innovations, such as FM radio broadcasting, color television, or the use of the telephone network for the marketplace, while others (e.g. AM stereo radio) have failed. ableregulators are better appropriate rules—and to design to Regardless, evaluate the success of the regulatory financial and strategic incentives facing industry participants. understanding the strategic thinking of the broadcasting entities. The decision theoretic model formalizes the choose to transition lower. Empirical testing of results that are in line the model yields with the predictions. A mor which from the game theoretical model, rivals will management also considers what its gain might the station as the chances that well (as stations other the faced difficult decisions determining in how best to fulfill their statutory mandate to serve the public in new benefits for consumers but threatens to leave some behind. While we have focused on the DTV issues such transition, standard setting, as coordination of industr variables, which are jointl which variables, is not significant in the ordered probit model. the ordered probit model. in is not significant lost by transition lost by also significant (with the same signs) in the ordered probit model. The exception is the ordered probit model. signs) in the same also significant (with the 187. 4 new to Estimation variables the three of a with significance of 42.9, statistical statistic returns a chi-square(3) of the joint A test 188. faced many that since stations Some readers of early versions of this article noted perhaps that 2009, February 17, before to switch to DTV could have chosen times when they do this is One way to decision periods. for the multiple account the econometric model should dependent to change the the viewership, power cost, and February 17, 1 if switched on February 17, and 2 if switched1 if switched on February before then.17, ordered ThenFebruary an Estimations 2 and 3 with Repeating simple the probit. of in place used can be probit model that ordered probit model yields results dependent variable and the of the new definition this are substantially similar to those presented in the theory, statistically but insignificant. For all three of the “strategic” D 490 C are larger im than importance of the st importance variables in Estimation 4 are similarin Estimation 4 are variables in to those Estimation 3. 30555_cdt_9-2 Sheet No. 82 Side B 08/09/2011 09:04:54 B 08/09/2011 82 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 83 Side A 08/09/2011 09:04:54 PM
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491 ordinate their actions may quickly become maybecome quickly OULETTE R ATE ATE D ofto are expected consumers) with the FCC’s desire to protect dernier cri ogical sea change that the FCC that when many players (or, (or, many players when that to future regulatory endeavors. RANSITION T
’ to purely voluntary measures in such cases. In players in a market to co players in ROADCASTERS B HE 6/21/2011 ELETE D Given that today’s technologicalGiven that today’s One insight from the game is game from the insight One OT N O M K yesterday’s obsolete historical curiosity, it is certain that the DTV historical curiosity, it is certain yesterday’s obsolete transition will final technol not be the some ofsome becomes viewers) these important. strategically players withequivalently, a large share switch to the new technology early, the incentives for other players to delay increases. strategic incentives These it difficult than make it more otherwise be for all would consumers in certain “at risk” markets by ensuring that some analog 2009. temporarily after February viewing options remained will oversee, perhaps even in broadcasting. Insights gained from this examination may thus provide useful D 2011]T on adopting new the In technology. situations where the regulator wishes the transitiontoproceeduniformly, it maymore preference want to give to mandatory cutoffs than the DTVthe present case of transition, however, the strategic incentive for some stations to delay was in accord C Y 30555_cdt_9-2 Sheet No. 83 Side A 08/09/2011 09:04:54 A 08/09/2011 83 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 83 Side B 08/09/2011 09:04:54 M K C Y PM PM
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. [Vol. 9 [Vol.. J. L ON TECH. HIGH & TELECOMM. 5.400 2.275 1.760 12.240 y 12.634 3.919 4.930 22.170 y Table 1: Summary Statistics for the DMA Level Data Statistics for the DMA Table 1: Summary 8/8/2011 ELETE D 0.097 0.107 0.000 0.592 k OT N d price/viewer, prime access prime d price/viewer, news d price/viewer, late 0.025 fringe d price/viewer, late 0.023 0.046 0.032 0.024 0.049 0.032 0.008 0.032 0.305 0.016 0.012 0.007 0.635 0.431 0.431 ge55_64 0.170 ge55_64 0.225 ge65up 0.012 0.0350.024 sian 0.131 0.111 0.041 0.212 0.369 0.000 0.507 dult pop 0.002 ge0_18 0.056 ge18_24 0.158 ge25_34 0.0010.182 ge35_44 0.0150.207 ge45_54 0.017 0.000 0.018 1,105,026 0.029 0.013 1,733,035 0.113 0.005 0.100 0.142 7,600 0.162 0.220 0.236 15,900,000 0.271 V households 545,032 831,576 3,940 7,433,820 O White 0.810 White Blac 0.1240.068 Race_other 0.096 Hispanic income $10-20K HH 0.288 0.067 income $20-35K HH 0.145 income $35-50K HH 0.976 income $50-75K HH 0.010 $75-100K income HH 0.004 0.132 income $100-125K HH 0.229 0.355 income $125-150K HH 0.196 0.940 income above $150K HH 0.027 0.187Female 0.512 0.026 0.094 Price Commercial Electricity 0.030 0.015 rate Unemployment 0.016 0.024 0.058 0.010 0.023 0.025 0.133 0.013 0.152 9.539 0.206 0.008 0.117 0.278 0.012 0.474 0.048 0.229 0.010 2.441 0.235 0.064 0.004 0.532 0.167 0.007 0.083 6.090 0.053 0.024 0.085 20.890 0.029 0.274 OTA-only households Households551,089 825,845 60,207 4,000 87,275 7,546,000 370 798,570 A A A A A A A Variable Mean Std. Dev. Min Ma Mean Variable 8.319 Stations T Std. 5.204A A 1.000A A 27.000 A A % HH’s completely unread NTIA waitlist: coupons coupons waitlist: NTIA households waitlist: NTIA OTA-only NTIA waitlist: HH’sHH’s partially unread % 0.009 0.036 0.020 0.003 0.011 0.006 0.002 0.008 0.005 0.020 0.080 0.042 Table notes: there are 210 DMAs. are All variables observed for each the DMA except Nielsen for 56 markets.unreadiness figures, which are available D 492 30555_cdt_9-2 Sheet No. 83 Side B 08/09/2011 09:04:54 B 08/09/2011 83 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 84 Side A 08/09/2011 09:04:54 PM PM
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493 OULETTE R ATE ATE D RANSITION T
’ 284 284 0.714 0.020 0.113 0.108 1,738 0.017 0.045 0.000 0.565 1,740 0.163 0.370 0.000 1.000 1.000 0.000 0.370 0.163 1,740 1,030 5.600 4.671 -134.9 1310.3 1310.3 -134.9 5.600 1,030 4.671 1,740 9.688 2.784 6.090 20.890 20.890 6.090 2.784 9.688 1,740 40.270 1,300 65.684 1342.9 0.000 1,740 0.096 0.125 0.000 0.799 0.799 0.000 0.125 0.096 1,740 ROADCASTERS B HE 1,740 0.111 0.314 0.000 1.000 1,740 0.057 0.232 0.000 1.000 8/8/2011 Table 2: Summary Statistics for the Station Level Data Table 2: Summary X W ELETE D 1,740 0.098 0.100 0.000 0.592 k OT observed) observed (KW) (cents/KWH) KW) (M) N ge 25-54 ($) prime price/viewer, d 1,740 1,740 0.037 0.554 0.023 0.035 0.016 0.434 0.635 0.637 sian 1,740sian 0.036 0.068 0.000 0.507 O % pop. lost by transition (when % DTV interference (pop.) % pop. lost by transition is Electricity price × price × powerElectricity (log) Power savings, digital vs. analog 1,299 -1.447 1.162 -7.732 2.988 Household Income > $100,000 > Income Household Commercial Electricity Price 1,740 (households) waitlist NTIA 0.079Estimated input power (analog, 0.039 1,740 0.022 0.020 0.219 0.005 0.005 0.042 Blac Network: ION ION Network: PBS Network: Univision Network: 1,740Hispanic 0.108 1,740 0.141 1,740 1,740 0.035 0.004 0.024 0.203 0.184 0.940 0.152 0.402 0.000 0.000 0.000 1.000 1.000 1.000 Network: C A A OTA viewership (M)of station viewership OTA ($K)revenue/ad in DMA Stations 1,245 1,245 in DMACommercial stations ABC 0.029Network: 1.175 CBS Network: 1,374 0.051 NBC Network: 2.968Network: FO 9.217 0.000 1,740 0.000 5.155 11.549 0.498 37.455 1,740 6.176 1.000 1,740 0.122 25.000 1,740 1.000A 0.126 0.327 27.000 0.128 0.332 0.000 0.334 0.000 1.000 0.000 1.000 1.000 Variable Obs Mean Std. Dev.Min Max ObsVariable 2009 Feb. 17, on Switched Mean 17 on Feb Desired to switch Std. Feb. 17 before Switched Feb. 17 on or before Switch 1,740OTA-only households in DMA 1,740 0.236 0.261 1,740 1,740 0.425 0.439 0.124 0.359 0.000 0.000 0.329 0.480 1.000 1.000 0.000 0.000 1.000 1.000 Other raceOther 1,740 0.078 0.070 0.010 0.355 M K Table notes: the variable “% pop. lost by transition” is observed in the FCC public data only for stations for which it is greater than 2%.
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40.6 34.1-
34.1 27.7- 27.7 % of Stations% Switching in DMA Early 21.2- J. L ON TECH. HIGH & TELECOMM. 21.2 Table 3: Summary Statistics for Statistics for Table 3: Summary 14.8- 8.3- 14.8 8.3 Stations’ Decisions to Turn off Analog Broadcasting Broadcasting Analog Decisions to Turn off Stations’ 6/21/2011 00.1- Figure 1: Histogram of Stations’ Decisions to Switch Early to Switch Early Decisions of Stations’ Figure 1: Histogram ELETE
5 0
D 35 30 25 20 15 10 Frequency OT N Switched on Feb. 17 Switched on Feb. 17 Desired to switch on Feb Feb. 17 Switched before 0.283 Feb. 17 Switch on or before 0.247 0.222 0.133 0.380 0.2 0.258 0 0.333 0.235 0 0.292 0.207 0 1 0 0 1 1 1 O
Variable Mean Median Std. Dev.Min Max Dev.Min MeanVariable Median in DMA stations Fraction of that: Std. D 494 30555_cdt_9-2 Sheet No. 84 Side B 08/09/2011 09:04:54 B 08/09/2011 84 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 85 Side A 08/09/2011 09:04:54 PM
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above $150K 495 150K $125- Adul t OULETTE R Population 125K $100- ATE ATE
D Total holds $75- 100K House- 75K
$50- holds RANSITION House- OTA-only T
’ 50K $35- holds TV House- TV 35K $20- ROADCASTERS B < 18< 18-24 25-34 35-44 45-54 55-64 65+ (a) Correlation with Size of Market 20K $10- Stations (c) Correlation with Household Income (c) Correlation with Household Income HE 0 0 0 0.1 0.2 0.1 -0.1 -0.2 -0.3
-0.2 -0.1 -0.1 -0.2 -0.3
0.05 0.15
-0.05 -0.15 -0.25
0.25 0.15 0.05 (b) Correlation with Age of Head of Household (b) Correlation with Age of Head of Household
-0.15 -0.05
-0.05 -0.15 -0.25
Correlation with % Switching Early in DM in Early Switching % with Correlation A Correlation with % Switching Early in DM in Early Switching % with Correlation A Correlation with % Switching Early in DM in Early Switching % with Correlation A
6/21/2011 ELETE with Various Factors (DMA level data) – Continued on Page 496 Page data) – Continued on with Various Factors (DMA level D OT N O M K Figure 2: Correlation of Stations’ Decisions to Stop Analog Broadcasting Early to Stop Analog Broadcasting Decisions of Stations’ Figure 2: Correlation D 2011]T
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Households
Unready
Completely Households
. [Vol. 9 [Vol..
Unready
Partially
Waitlisted
Households OTA-only
Waitlisted
Households
Waitlisted Coupons Household DTV Readiness Prime significant at the 5% level. Access Prime News Late Fringe Late J. L ON TECH. HIGH & TELECOMM. White Black Asian Race Other Hispanic (d) Correlation with Race and Ethnicity (d) Correlation with Race and Ethnicity 0 0 -0.05 -0.06 -0.1 -0.2 -0.3 0.1
-0.1 -0.2
-0.048 -0.052 -0.054 -0.056 -0.058 -0.062 -0.064 -0.066 -0.05 -0.15 -0.25
0.05
-0.05 -0.15 Correlation with % Switching Early in DM in Early Switching % with Correlation A Correlation with % Switching Early in DM in Early Switching % with Correlation A
A DM in Early Switching % with Correlation 6/21/2011 (e) Correlation with NTIA Waitlist for Converter Coupons and ote: lighter bars indicate that the correlation is not statistically the correlation ote: lighter bars indicate that (f) Correlation with Ad Price per Viewer, by Daypart (SQAD Data) N ELETE D OT N Figure 2: Correlation of Stations’ Decisions to Stop Analog Broadcasting Broadcasting to Stop Analog Decisions of Stations’ Figure 2: Correlation Early with Various Factors (DMA level data) – Continued From Page 495 O D 496 30555_cdt_9-2 Sheet No. 85 Side B 08/09/2011 09:04:54 B 08/09/2011 85 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 86 Side A 08/09/2011 09:04:54
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ision
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OULETTE Yes No
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Figure 3: Transition Decisions by Network Network by Decisions Transition Figure 3:
Yes No
l Al 6/21/2011 0% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Figure 4: Transition Decisions by Nielsen TV Rank Quartiles Quartiles Nielsen TV Rank by Decisions Transition Figure 4: 90% 80% 70% 60% 50% 40% 30% 20% 10% 100% ELETE
100%
D
Stations Transitioning Early Transitioning Stations OT Early Transitioning Stations N O M K D 2011]T
C Y 30555_cdt_9-2 Sheet No. 86 Side A 08/09/2011 09:04:54 A 08/09/2011 86 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 86 Side B 08/09/2011 09:04:54 M K C Y PM
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=1) in the Y Estimation 2 Estimation effect Commercial Stations Commercial
. [Vol. 9 [Vol.. s.e. Marginal s.e.
All Stations Estimation 1 Estimation effect 1,740 924 ** indicates significance at the 1% level. at the 1% significance ** indicates J. L ON TECH. HIGH & TELECOMM. to Transition Early to DTV Early to DTV to Transition -1.187* 0.535 0.725 0.658 6/21/2011 -0.115** 0.037 -0.004 0.051 K -0.015 0.084 -0.015 0.056 Table 4: Probit Regression Analysis of Stations’ Decisions Decisions Stations’ Table 4: Probit Regression Analysis of X W alue) 236.03 (0.000) 208.64 (0.000) ELETE v - D p -0.078 0.127 -0.468** 0.149 OT k N stat (
sian 1.144**sian 0.322 ge 25-54 1.136* 0.472 -1.128* 0.463 -0.759 0.541 O Y = Actually Transitioned Early Y = Actually Transitioned 2 = 1 if station transitioned on or before February 17, otherwise. 2, In Estimation 2009, 0 only Y in Pr( commercial stations change effects are the average are included. The marginal sample due to athe regressor (approximated one unit increase in with the derivative for continuous also include a constant,regressors). The estimations which not have a marginal effect. does Blac Network: FO Network: IONNetwork: NBC Network: Network: PBS Univision Network: -0.398**Hispanic 0.154 -0.172** -0.092* -0.128 -0.056 0.033 -0.032 0.046 0.075 0.033 -0.107 0.202 -0.085 -0.131 0.090 0.048 0.079 N level, at the 5% * indicates significance A A Table notes: Regressions are probit models for the binary dependent variable in the column heading. Variable Marginal Variable in DMA households OTA-only OTA viewership revenue/ad % OTA-only in DMA -0.673** in DMA Stations 0.167 -0.448 0.153 0.004 0.306 0.293 0.003 -0.213** 0.031 D 498
Likelihood: -1018.1 -474.4 Electricity Price × Power (log) Price × Electricity F 0.042** 0.015 Other raceOther 0.533 0.317 -0.352 0.413 Income > Income > $100 Commercial stations in DMA Network owned & operated ABC Network: CBS Network: Network: C -0.263** 0.034 -0.164** -0.176** -0.265** 0.033 -0.005 0.032 0.037 -0.041 0.005 -0.038 0.048 0.051 30555_cdt_9-2 Sheet No. 86 Side B 08/09/2011 09:04:54 B 08/09/2011 86 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 87 Side A 08/09/2011 09:04:54 PM
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Estimation 4 Estimation 499 Commercial Stations Commercial variable when it is below 2% is is 2% below is when it variable OULETTE
R ATE ATE D mation 2. The last three variables (“Others’ s.e. Marginal effect effect s.e. Marginal s.e.
= 1 if station planned to transition on February 17, Y RANSITION T
’ Estimation 3 Estimation -0.609** 0.099 0.099 -0.609** variable enters the specification in a two-part variable enters the specification linear spline 831 504 1.347 1.224 1.224 1.347 5.354 5.674 ** indicates significance at the 1% level. at the 1% significance ** indicates effect -0.813* 0.359 0.359 -0.813* -2.177** 0.690 Commercial Stations Commercial percentile, and the impact of this of this percentile, impact the and th ROADCASTERS B for the other stations in the DMA that transitioned February on 17. x HE ansition-5.119** 1.701 pop. lost by transition 6/21/2011 alue) 178.64 (0.000) 258.88 (0.000) v Table 5: Probit Regression Analysis – Additional Specifications Table 5: Probit Regression Analysis ELETE - D p OT (between 2 and 32%) rev. (above 32%) N stat ( 2
O
”) are the average value of ”) are the average M K Y = Desired to Transition Early Y = Desired to Transition Variables in Estimation 3 but not in Estimation Variables in Estimation 3 but not4 in do not vary within a DMA and so are included in the fixed effects. See also notes to previous estimation table. Network indicator variables Demographic controls DMA fixed effects included included no included no included Others’ DTV interference interference DTV Others’ Others’ pop. lost by tr -1.442 1.249 Likelihood: -407.5 -199.6 absorbed into the constant. Included the regression in specification but not shown in the table are all the network and demographic variables included in Esti x 0 otherwise. The otherwise. 0
N level, at the 5% * indicates significance Table notes: Sample only stations includes not transitioning before February 17. Regressions are probit models for the binary dependent variable with knot placed at about the 98 Variable Marginal Variable OTA viewership revenue/ad stationsCommercial DMA in Network owned & operated -0.182** price × power (log) Electricity -0.003 DTV interference -0.248** 0.028% pop. lost by transition 0.049** 0.004 0.037 0.016 -0.332** ad Others’ OTA viewership -0.368 0.053 0.086** 0.412 0.024 -0.196 F 0.664 D 2011]T % pop. lost by transition C Y 30555_cdt_9-2 Sheet No. 87 Side A 08/09/2011 09:04:54 A 08/09/2011 87 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 87 Side B 08/09/2011 09:04:54 M K C Y 30555_cdt_9-2 Sheet No. 87 Side B 08/09/2011 09:04:54 B 08/09/2011 87 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 88 Side A 08/09/2011 09:04:54
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E W ADIO
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D A. IGHTS XCLUSIVE OCTRINE OF BTAIN THE R -E RACTICE D O PPROACH TO P ALEB ...... 509 PERATIONS A ULES FOR ON EGULATION K R O R N
...... 519 IGHTS BE R ET ...... 516 IEH NTE PECTRUM PECTRUM Y AND RDER TO S ALSTEN
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ATH R : V P
IGHTS IGHTS S R ROPERTY OSSTON ALABRESE RINCIPLES FOR
OODMAN J. OOKING ENEFIT FROM P R R OWARD ELD ADIO P R C G NYWHERE “P OSSESSION
B F T AND 6/21/2011 R M. -L , ACOBS A P WEREL J P. K HOULD ELETE EED FOR EED HREE EIGHT PERSPECTIVES ON WIRELESS ON WIRELESS PERSPECTIVES EIGHT S D IERRE DE N T Change is inair: there are likely to be significant new spectrum the ICHAEL P AROLD REGORY HARLA LLEN VEN RUCE THE UNFINISHED RADIO REVOLUTION: RADIO REVOLUTION: THE UNFINISHED
OT N H B C E G M E J. AXIMUM OW PERATING PERATING ETTING EFINING DVERSE SSIGNED HE HE CONOMIC ROGRESS ORWARD PECTRUM O M K S T Broadband Plan, and the march ofallocations as a result of the National technology keeps offering new ways to increase capacity the of wireless systems. revolution However, the begunthe end of “command and by control” radio licensing a more hands-off and the shift to regime of flexible-use auctioned licenses and unlicensed operation is incomplete. For example, while there is wide agreement on the importance of flexible P T * Senior Adjunct Fellow, Silicon Flatirons Center, University of Colorado, Boulder. Boulder. Colorado, of Center, University Fellow, Silicon Flatirons Adjunct Senior * Boulder. of Colorado, Flatirons Center, University Silicon Research Fellow, ** A A M O F O G D H D E C Y 30555_cdt_9-2 Sheet No. 88 Side A 08/09/2011 09:04:54 A 08/09/2011 88 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 88 Side B 08/09/2011 09:04:54 M K
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1 The 1:30
3 available at available http://www.silicon- http://www.silicon- Inter Channel Inter Channel Operating Rules . [Vol. 9 [Vol.. any new allocations. any new available at available available at available rights versus access open have Perspectives on Radio Operating Rights Radio on Perspectives Revolution: New Approaches to Handling to Handling Approaches New Revolution: ., (Nov. 12, 2010), ., (Nov. TR licenses vs. sharing vs. collective uses, and the increasing diversity m. Here, Goodman looks at the C 2009),
when no one can be held accountable when no one can be held accountable govern and motivate sharing; and not 2, She takes five lessons from recent 4 mand for wireless capacity.
LATIRONS LATIRONS (Dec. F (Nov. 12, 2010), 2010), (Nov. 12, The Unfinished Radio
. . J. L ON TECH. HIGH & TELECOMM. TR and governance regime for and governance TR Radio Regulation Summit: Defining Defining Summit: Radio Regulation C C ILICON ILICON As the summit inter-licensee showed, conflict is 2 , S pp. 505-08. pp. 505-08. 6/21/2011 LATIRONS LATIRONS F F . ELETE D . Id . See infra . See The conference brought together leading economic and legal The conference brought together The first paper frames the proble The following papers were presented papers were The following half-day at a conferencein This event built on a summitThis event built on cross-channel interference at 3 4 OT N O ILICON ILICON Silicon Flatirons in 2009 that analyzed some of the thorny recent radio analyzed some in 2009 that Silicon Flatirons interference cases. flatirons.org/documents/misc/OOBSummit/Inter-channelSummitReportv1.0.1.pdf. flatirons.org/documents/misc/OOBSummit/Inter-channelSummitReportv1.0.1.pdf.
greatest across boundaries of different of radio uses and users will only serve to amplify this problem. users will only serve to amplify of radio uses and Washington, D.C. on Friday, November 12, 2010. The conference set 2010. The conference November 12, D.C. on Friday, Washington, out to address key unanswered the operating How should radio question: defined,rights be assigned,and enforcedobtain in order to the maximum benefit operations? from wireless The eventwas organized by by IEEE-USA, and ITIF, and co-sponsored Silicon Flatirons, CTIA, New America Foundation, and FCBA. summarizing Reports the post-event roundtableconference and the are also discussion available. thinkers to reframe thegrapple discussion and with the neglected questions, such as: Not just debating use, but designing an optimum rights regime for whichever of these modes is used; not just who should but the share with whom, rules, rights and procedures that would just whether spectrum is being used efficiently today, kinds but what of rights and processes would motivate themost intensive use. state of play in wireless regulation and concludes that analysts are coming to consensus in many areas. experience: (1) Things take longer take longer (1) Things experience: for interference; (2) a failure or inability to deal with the receiver side of 1. Matthew Montgomery, Matthew 1. Wireless Interference use, the debate overthe debate use, of property the merits largely untouchedleft the matter important defining of optimal the permissions operating D 502 definition of cross-channel has, to date, been rights and responsibilities ad hoc; this approach is no longer sustainable given the increasing needdiversity of uses and users, and the pack operations to ever closer together in order to meet the de http://www.silicon-flatirons.org/documents/conferences/2010.11.12- Kaleb Sieh, 862/TheUnfinishedRadioRevolution.pdf; S S flatirons.org/documents/conferences/2010.11.12- 862/PerspectivesonRadioOperatingRights.pdf. 2. J. Pierre de Vries, 30555_cdt_9-2 Sheet No. 88 Side B 08/09/2011 09:04:54 B 08/09/2011 88 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 89 Side A 08/09/2011 09:04:54 PM PM
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it is issued, and They make two 7 503 They observe that while 5 operation, not minimizing EVOLUTION R , stipulate the remedies that attach ADIO R ns or damages) when This, he argues, will lead to access rights This, he argues, will lead to access 6 NFINISHED NFINISHED U re transparent, and more intensive. HE pp. 509-11. pp. 509-11. pp. 512-15. pp. 516-18. pp. 519-22. To this end, they propose that the regulatorTo this end, they propose articulates 8 6/21/2011 ELETE D . See infra . See . See infra . See infra . See infra . See The next five papers each make proposals for improving make proposals five papers each The next rights Kwerel and Williams then propose Kwerel and Williams then propose that the FCC revisit its general De Vries and Sieh argue that the overarching goal of spectrum 5 6 7 8 OT N O M K policy should be to maximize concurrent harmful interference; delegate management of interference to operators; and define, assign and enforce entitlements in a way that facilitates transactions. well-defined rules are important for both licensed and unlicensed bands, are important for both licensed and well-defined rules stricterthe latter may require rules because trades to maximize efficiency group of costly given the diffuse and amorphous could be prohibitively an updated radio continues by arguing for rights holders. Calabrese regulation regime promotes that pervasive connectivity by defining and permissibleexplicit transmit rights interference on a band-by-service basis, and recording explicit rights and actual operating parameters of licensees in a public database. to an entitlement (i.e. injunctio operating rights by using transmission probabilistic resulting-energy permissions and reception protections separate its roles as rule maker defining entitlements from adjudicator deciding up the disputes. Wrapping proposals, Feld highlights the
the equationthe sub-optimal produces entitlements; interference harmful (3) be a yieldshould (4) confusinga stop sign; not sign, spectrum efficient and (5) the consideration is recipe for delay; distributional issues use with associatedof values use with spectrum is under- than efficiency other developed. D 2011]T definitions. begin Rosston and Wallsten by advancing of the importance a regulatory framework that starts with clear rules, such as using resulting emission power, and allows parties rather than transmit to negotiate efficiency-enhancing changes to those rules. that are more definite, mo policy of providing incumbents (those licensed first) protection against any interference resulting from subsequent since its rule changes sequential approach to accommodating change its coupled with interference protection policy toward incumbent uses can be detrimental value use. to putting spectrum to its highest recommendations: Future allocations should self-protect against projected, not just current, adjacent band interference; adjacent band interference protection for incumbents should not be static, but be reduced over time. C Y 30555_cdt_9-2 Sheet No. 89 Side A 08/09/2011 09:04:54 A 08/09/2011 89 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 89 Side B 08/09/2011 09:04:54 M K C Y PM PM
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. [Vol. 9 [Vol.. set the protection level and set the protection actical considerations. Jacobs sts, and encourages FCC to the e dynamic nature of technology Many complex implementation Many complex implementation ing radio operating rights,ing radio but theoretical framework for radio 10
to foster a more transparentto foster a more and She gives two examples: the success 11
ces such as signal boosters. J. L ON TECH. HIGH & TELECOMM. pp. 523-25. pp. 523-25. pp. 526-27. pp. 528-30. 6/21/2011 ELETE D . See infra . See infra . See infra . See The final two papersThe final the pr delve into Rath argues that definingRath argues that the 9 OT 10 11 N O operating rights be must informed the experience by licensees have in an increasingly complex and gained resolving interference issues market-oriented RF environment. of clear, enforceable and negotiable such as those governing rights, mobile wireless, need for that allow for private agreements; and the additional enforcement assistance to prevent unauthorized operator-to- licensee interference from sour recommends that wireless that recommends to a mechanism similar makers develop policy exceptionalwith adverseand deal possessionby casesof developing a set rather thanguiding principles through ad hoc rule making. recognizes of clarify the importance emphasizesof the task. the difficulty
problem of violations of radio regulations and how many of these shareproblemofthese violations of how many and regulations of radio in doctrine possession adverse of the elements real property law. D 504 questions have to be addressed, and th questions have to and incommensurable policyand incommensurable services further values attached to different complicates matters. He encourages a protection level for establishing new licensees to minimize transition co generalize criteria it uses to the principles and measurement approach in order predictable set of rights for future proceedings. 30555_cdt_9-2 Sheet No. 89 Side B 08/09/2011 09:04:54 B 08/09/2011 89 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 90 Side A 08/09/2011 09:04:54 PM PM
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14 W , March 17, 17, , March RE RE metimes we A
: SpectrumRights in These include We have also 15 13 IGHTS protections) and the protections) and R dispute resolution), as dispute resolution), 505
tive apparatus (in both ? 12 ex ante ex post innovation, and so EVOLUTION past decade on what ails U.S. R PECTRUM PECTRUM nce, we have offered a number ofnce, we have offered S OODMAN NYWHERE ADIO Spectrum Policy Reform and the Next Frontier of Next Frontier and the Reform Policy Spectrum R A G
549 (2008); Ellen P. Goodman, (2008); 549
. P. EV R
NFINISHED NFINISHED ATIONAL ATIONAL U L. ETTING ETTING R LLEN note 1. HE E G Connecting America: The National Broadband Plan Broadband National The America: Connecting ASON ASON supra M
. FCC, FCC, OWARD OWARD , EO T , 41 SAN DIEGO L. REV. 269 (2004). (2004). 269 L. REV. DIEGO SAN , 41 6/21/2011 , 15 G Montgomery, . will want tightly access for specific rights controlled holders use willMore intensive and should mean more conflicts over spectrum use These conflicts should be prevented before the fact by some uses and industry combination of FCC zoning of compatible These conflicts should be addressed after the fact with performance standards expedited adjudications and arbitrations,on the which depend creation of the appropriate administra private and public institutions) We need much more spectrum made available for mobileavailable for more spectrum made need much We broadband a combinationWe need rights and shared of exclusive rights to access spectrum, recognizing that sometimes we will want spectrum“easements” or low impact access to that has otherwise been assigneduse, sometimes for exclusive wewant will commons spectrum for unlicensed ELETE Philip J. Weiser & Dale Hatfield, J. Weiser & Dale Philip D . See . Id . See generally . See ROGRESS ROGRESS See Analysts from legal, economic, and from legal, economic, Analysts engineering disciplines have Notwithstanding difference in the details,Notwithstanding it seems that analysts are x x x x x OT ; P 13 14 15 N O M K supplied plentysupplied of commentary in the spectrum management. At this confere competing proposals for how to define spectrum users the rights of to responsibilities ofemit signals, the spectrum to reject noise, users how spectrum rights and responsibilitiesbe recorded, and how should conflicts overinterference ought toadjudicated. be the following: converging on some important consensus conclusions. the Telecosm to Come to the Telecosm more rights, and to Pierre and Peter Tenhula on radio program Vries for organizing the 12. to J. Pierre de Many thanks of Law – Camden. Professor, Rutgers University School area. ideas in this generally for stimulating D 2011]T Property Rights
well as varying suggestions for public and private institutional roles. for publicwell as varying suggestions private institutional and resolution after the fact ( of conflicting uses provided differing views on the proper balance between the prevention of conflicting spectrum uses (frequently called 2010 C Y 30555_cdt_9-2 Sheet No. 90 Side A 08/09/2011 09:04:54 A 08/09/2011 90 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 90 Side B 08/09/2011 09:04:54 M K
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Notice of Proposed , 53 Ariz. L. J. 213 (2011) (2011) Ariz. L. J. 213 , 53 Second Report & Order & & Order & Report Second . [Vol. 9 [Vol.. Spectrum Auctions and the Public Public the and Auctions Spectrum the decision removing 17 Report & Order & Second Report & & Report & Second Order & Report L. 343 (2009) (arguing for spectrum auction spectrum for (arguing (2009) L. 343
. ECH Tragedy TV: Rights Fragmentation and the Junk Band Band the Junk and Fragmentation Rights Tragedy TV: T the TV Broadcast Bands, the IGH H
, 23 FCC Rcd. 16807 (Nov. 14, 2008). (Nov. 14, 2008). FCC Rcd. 16807 , 23 J. L ON TECH. HIGH & TELECOMM. One cannot say that spectrum management has & 16
. , Thomas W. Hazlett, ELECOMM 6/21/2011 Efficient conflict resolution conflict Efficient that initial requires entitlements license in the precisely be stated at the allocation) license-free (or be further outset, and evolvingwhat will be an articulated in law”“common allocatingresponsibilities for mitigating interference the What right rule is for allocating responsibilities any in particular spectrum the kind will depend on dispute of services at issue, the relative ability of the parties the problem to address at and other public interests the transmitter, the receiver or (externalities) that may be implicated Spectrum use entitlements, both transparent in publiclyshould be made accessible and user- initial and post-dispute, friendly registries. ELETE See, e.g. See, D , 53 Ariz. L. J. 83 (2011) (arguing for more L. J. 83 (2011) (arguing licensed spectrum);, 53 Ariz. Werbach, Kevin 7 J. T 7 J. That said, this Commission has made several notable recent While these conclusions have been gestating, battles have played out have been gestating, battles While these conclusions , FCC 10-82 (May 20, 2010). 2010). (May 20, 10-82 , FCC x x x OT N O (arguing for more license-free spectrum); Ellen P. Goodman, license-free spectrum); Ellen P. Goodman, for more (arguing Wasteland: Anticommons, White Spaces, and the Fallacy of Spectrum the and Fallacy Spaces, White Anticommons, Wasteland: Interest, Order 19. Services in the Mobile Satellite Service Bands, Fixed and Mobile Problem and the proposal to open satellite spectrum to terrestrial wireless use. spectrum and the proposal to open satellite 16. D 506 changed much over the past decade or that we have made a great deal ofchanged much over the past decade progress in implementing the conclusions stated above. Spectrum same as it always has been: highly management is still pretty much the conservative, protective of incumbents, without clear entitlementsand dispute resolution procedures, lacking in the regularity and transparency that would facilitate secondary markets, and, most especially, bogged down in questions of fairness, windfall, readings of the public strained interest, and competitive advantage. decisions to free up spectrum for new uses by modifying existing entitlements and mediating conflicts. These between potential spectrum band “white spaces” available for include the order opening up TV unlicensed fixed and mobile wireless usage, design that better accommodates public interest burdens). public interest burdens). design that better accommodates Unlicensed Operation in 17. Memorandum Opinion & Order Memorandum Opinion in the 2.3 GHz Band, Services Wireless Communications Commission’sof of the Part 27 Amendment Operation the Rules to Govern of 18. obstacles to mobile wireless use of spectrumobstacles to mobile wireless use of adjacent to satellite radio, over the allocation of spectrum for unlicensed and exclusive use, and over of spectrum for unlicensed and exclusive over the allocation the modification of existing for more intensive licenses to allow (and valued) spectrum use. 30555_cdt_9-2 Sheet No. 90 Side B 08/09/2011 09:04:54 B 08/09/2011 90 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 91 Side A 08/09/2011 09:04:54 PM PM
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The FCC a tool to assign and 507
a tool to define rights nce as a gatekeeper to both EVOLUTION R ADIO R Whether or not incumbents should NFINISHED NFINISHED U cations and is one of the reasons the White cations and is one HE , FCC 10-126 (July 15, 2010). 2010). 15, 10-126 (July FCC , with industry-set standards. The concept is in effect 20 6/21/2011 One unlicensed use, howeverof the complications of The public interest in spectrum exploitation and the public (and (and public the and exploitation spectrum in interest public The Confusing efficient spectrum use with distributional issues is a recipe Failure or inability to deal with the receiver side of the equation the receiver side of the equation Failure or inability to deal with Harmful interference should be a yield sign, not a stop sign. Things take longer when can be held accountable no one for ELETE D 4.
What can we learn fromrecent experiences? What would it take to 1. 2. 3. OT N O M K produces sub-optimal entitlements. have the obligation to improve receiverwill depend on performance many factors, including the type of network deployed and the state and pace of technological innovation. more clear is that theMuch FCC should have the authority to mandate receiver performance,to or mandate compliance liability (new is responsible for harmful interference it does entrant cause). Instead, the notion of harmful interference should be, among other elements, what gives a spectrum to seek user a “cause of action” redressable, and by what means, redress. Whether the harm is actually should be separate questions. (new entrant may not cause harmful interference)(new entrant may not cause harmful for delay. competitor) interests in preventing licenseesfrom getting windfall benefits are distinct. Whether or not spectrum rights should be expanded, whoget to take advantage of expanded rights, and should what they should have to pay for them are all separate issues and should be handled separately, with mechanisms for redistribution of benefits where necessary. Rulemaking & Notice of Inquiry of & Notice Rulemaking 20. (2009). § 15.5(b) 47 C.F.R. There wereThere innovations some management on the spectrum here front most importanton. The worth building they are and yet to decision of the reallocation probably concern come will forbroadcast spectrum use. broadband D 2011]T accelerate progress?: interference. desirable it is that it’s may be, hard to assign responsibility for interference. This difficulty buttresses the existing already tendency allo towards conservative Spaces decision took so long. Innovative “zoning,” revocable certifications and registrations, and a certain of reciprocity amount for interference prevention ease this problem. Underexplored is the role that interference insurance might play. continues to use predicted harmful continues to use predicted harmful interfere spectrum entry. C Y 30555_cdt_9-2 Sheet No. 91 Side A 08/09/2011 09:04:54 A 08/09/2011 91 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 91 Side B 08/09/2011 09:04:54 M K C Y PM PM
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. [Vol. 9 [Vol.. Reallocation of broadcast spectrum inspectrum of broadcast Reallocation J. L ON TECH. HIGH & TELECOMM. 6/21/2011 Consideration of values associated of values Consideration with use spectrum otherthan ELETE D
5. OT N O D 508
particular will touch on valuesare baked into that allocation, the current universalsuch as service, set-asides, noncommercial and distributed access rights. As with distributional issues, these considerations are efficient spectrum separate from conceptually exploitation, but will need to be dealt with. efficiency is under-developed. is efficiency 30555_cdt_9-2 Sheet No. 91 Side B 08/09/2011 09:04:54 B 08/09/2011 91 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 92 Side A 08/09/2011 09:04:54 PM PM
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Report & Report ADIO 21 R M2Z asks FCC to FCC M2Z asks Research and Senior (Aug. 15, 2008), (Aug. 15, ALLSTEN 509 ULES FORULES W IRELESS in the 800 MHz Band, in the 800 MHz R
W NTE bands, the cause of harm to EVOLUTION COTT A R e Vice President for S X actions costs. Such a regulatoryactions costs. Such IERCE negotiations between licensees to E ADIO R , F ies included 800 MHz, AWS-BAS, AWS-3 and and AWS-3 AWS-BAS, MHz, included 800 ies NFINISHED NFINISHED U OSSTON ANDOSSTON HE In each case the parties disagreed about whether case the partiesabout disagreed In each R rference tests 23 RINCIPLES FOR FOR RINCIPLES P rules by the Federal Commission Communications REGORY REGORY The studiessubstantial highlighted disputes about rights Improving Public Safety Communications Public Safety Improving 22 G 6/21/2011 Silicon Flatirons Ctr., Telecommunications Regulation in Comparative Ctr., Telecommunications Flatirons Silicon ex ante CONOMIC CONOMIC ELETE
E D 24 . See, e.g., . See, . See Well-Defined Rights and/or Rules In September 2009, Silicon Flatirons hosted Flatirons 2009, Silicon In September featuring a conference These case studies highlightThese case studies the importance of a regulatory Spectrum users are more likely to invest if they understand their Focusing emissions on into other , WT Dkt. No. 02-55, 19 FCC Rcd. 14,969 (2004); Lynette Lun, Lun, Lynette (2004); Rcd. 14,969 FCC 19 02-55, , WT Dkt. No. OT 24 22 N O M K 08-15. reject more AWS-3 inte reject more Order http://www.fiercewireless.com/story/m2z-asks-fcc-reject-more-aws-3-interference-tests/2008- and responsibilities apparently operation in various bands despite of radio detailed regarding interference. Perspective, Conference, Sept. 9, 2009, http://www.silicon-flatirons.org/events.php?id=681 http://www.silicon-flatirons.org/events.php?id=681 Perspective, Conference, Sept. 9, 2009, 2011). 15, (last visited Jan. case stud the in bands The WCS/DARS. 23. isPolicy Research (SIEPR), and Scott Wallsten th for Economic Institute Stanford Director at the Deputy is the Gregory Rosston 21. Policy Institute. Fellow at the Technology D 2011]T a number relatively of regulation and of radio recent case studies interference. the transmitterthe receiver or “caused” the interference and if so, as defined by the was operating within its rights whether that party FCC. framework that facilitates efficient solve problems by minimizing trans framework would start with clear rules and allow parties to negotiate efficiency-enhancing changes to those rules. to be reasonably sure their long-livedown and others’ rights well enough equipment and infrastructure to operate investments will continue otherwithout harmful interference from users, and that their transmissions will not be interfereshut down because they with other users’ transmissions. power—which is but one adjacent licensees, rather than on transmission potential cause increase certainty of harm—should and help align incentives with minimizing the transaction costs of adapting behavior. If emissions interfere with an adjacent several licensee’s transmissions, solutions not involving the FCC become possible that are not possible, C Y 30555_cdt_9-2 Sheet No. 92 Side A 08/09/2011 09:04:54 A 08/09/2011 92 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 92 Side B 08/09/2011 09:04:54 M K , C Y PM PM
27 The 1:30
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25 . 1 (1960). . 1 (1960). CON E
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, 3 J.L. agencies, tend to protect courts ibly commit to not change those nce is more important unlicensed for ample,to could continue licensee the Wireless Companies Blast Sirius XM in Spectrum Controversy Spectrum XM in Sirius Blast Companies Wireless TheCostSocial Problem of J. L ON TECH. HIGH & TELECOMM. In our example, the transmitter agree would to 26 (Apr. 9, 2010), http://www.radiosurvivor.com/2010/04/09/wireless-
licensed bands. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978); v. City of New Transp. Co. York, 438 U.S. 104, 124 (1978); Penn Cent. rule changes when firms make long-lived investments. rule changes when firms make long-lived Matthew Lasar, Matthew 6/21/2011 Ronald H. Coase, Ronald H. Coase, URVIVOR ex post ex ELETE S D . See, e.g., . See, . See . See, e.g, See, . Application to the Case Studies WT Dkt. No. 02-55 (July 2004). (July 2004). No. 02-55 WT Dkt. Licensees that desire to make trades with neighbors can adapt or with neighbors Licensees that desire to make trades In the spectrum context, the well-known Coase TheoremIn the spectrum implies One key problem with the historic method of radio regulation based Well-defined rules are important and unlicensed for both licensed OT 27 26 25 N ADIO O make trades to allow for different standards that thenmake trades to allow for different become part of their new operating transactions, the rules rights. However, to facilitate need to be set and the FCC must cred credible or other pressure. While in response to political rules commitmentsregulatory are difficult for against Cir. 1998). (D.C. F.3d 1350 v. Chrysler Corp., 158 United States Order, 28. Band, MHz the 800 in Safety Communications Public Improving FCC, companies-blast-sirius-xm-in-spectrum-controversy. companies-blast-sirius-xm-in-spectrum-controversy. R or at leastor at likely, today. not ex For D 510 in theoperate while same way installs licensee the adjacent filters receiver itsto ensure if the receiver Alternatively, still work. transmissions is expensivetechnology simply relative to reducingemissions from the could the adjacent licensee transmitter, negotiate the transmitter with to not likely an outcome is Today, such technology used. change the of one the rules in favor the FCC to change parties rely on because the as well as the difficultyparty or another, to complete in coming the FCC has agreements when ability to void the same. the pay to replace the receiver since that is mutuallybeneficial. The real rife with transactionsworld, however, is costs, policy can improve but efficiency by reducing these transactionscosts. that if transaction costs are zero, or simply less than the transaction costs solution to the parties will agree to an efficient of other options, interference problem. on transmitter power has been its difficulties in dealingon transmitter power has been with technologicalas exemplified change, by between Nextel and the dispute the public safety community over the 800 MHz transmissions. bands. Unlicensed bands may require stricter rules because trades of the sort described could above be prohibitively costly given the diffuse and Because trading of rights and amorphous group of rights holders. with unlicensed bands, setting up a changing technology is more difficult rational and clear set of rules in adva bands than for 30555_cdt_9-2 Sheet No. 92 Side B 08/09/2011 09:04:54 B 08/09/2011 92 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 93 Side A 08/09/2011 09:04:54 PM PM
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511 The spectrum allocated to allocated spectrum The 29
EVOLUTION R 32 Nextel (then FleetCall) convinced 30 ADIO R they began to construct their adjacent NFINISHED NFINISHED U HE adjacent channels. The low power The low sites did not exceed the power limits the of 31 6/21/2011 . . . . ELETE D . Id . Id . Id . Id The FCC could also haveThe FCC could only if allowed the new technology but Finally,the best course, and perhaps would have been to define The rules for 800 MHz transmissionThe rules for 800 could have minimized OT 29 30 31 32 N O M K interference between CMRS providerssafety providers by and public requiring Nextel to continue use high-tower, to only high-power sites. But that would have disallowed the technologicaladvances and prevented more efficient use of the spectrum. the CMRS licensees negotiated the public safety entities with for the new rights. Flexibility created by clearly defining the rights upfront and agreement by the licensees could allowing changes to the rights upon have led to a mutually agreeable situation. initially the rights of 800 MHz licensees differently. Rather than designating technology or transmission the rights could power, have explicitly established a maximum level of emissions into adjacent channels. Theradio private licensees the public safety entities would and have both known the rules when systems and acquire their radios. If Nextel had then decided to use a technology that the adjacent channels, it increased emissions into would have known that it would have to negotiate safety with the public agencies if its new transmission method did not comply with the emission limits. If Nextel’s new technology complied with the emissions rules, then the public safety agencies would either have to adapt their of cases, the efficient method both In with Nextel. receivers or negotiate reducing interference would have been selected by negotiation between the parties. Of course, this in part strikedepends on the ability to a deal with one or a small number of parties each side, on as transaction costs of parties neededgenerally increase with the number to reach agreement, all other things being equal. the FCC to change the privatethe FCC rules so that Nextel radio function could low-power”and use “low-tower, provider as a CMRS cellular architecture.
FCC wrote rules for 800 MHz private radios with maximum radios private 800 MHz rules for wrote FCC power forlimits “high-tower, sites. high-power” D 2011]T
high power high tower sites, but nonetheless interfered with public safety on receivers operating “private radio”“private was nearly to the its physical properties identical in service. allocated to cellular spectrum C Y 30555_cdt_9-2 Sheet No. 93 Side A 08/09/2011 09:04:54 A 08/09/2011 93 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 93 Side B 08/09/2011 09:04:54 M K
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levels of protection from ON Force Presents Recommen and N ordination and negotiation, as IGHTS ET profit policy institute based in Washington, based in Washington, profit policy institute R Y ALABRESE C on the U.S. Department of Commerce Spectrum EFINED EFINED g theof a quantitative “creation PERATING PERATING -D : The definition of these access rights and the ICHAEL O : Since both shared access M J. L ON TECH. HIGH & TELECOMM. ELL : Rights to transmit conditions of new and renewed licenses, and conditions of new and renewed W explicit an exponential increase in spectrum re-use will be needed to an exponential increase in spectrum 6/21/2011 EED FOR EED Press Release, FCC, Spectrum Policy Task N and meet expected consumer a licensee’s affirmative data demand, use of any remainingaccess rights must not preclude the capacity by third parties on a non-interfering basis. Radio rights should conform to a ‘use it or share it’ ethos. More definite operating parameters of all deploymentson a licensed band should be registered in a publicly accessible database that can be used to facilitate decentralized co subject to secondary-market transactions. More transparent well as opportunistic access to unused spectrum capacity. More intensive third parties (both co-channel adjacent channel)and should be made ELETE D . See Introduction Introduction In short, the unfinished challenge FCC needs to return to the
As mobile computing ubiquitous, the resulting exponential becomes HE ¾ ¾ ¾ OT 34 T N O defined by its own 2002 Spectrum Policy Task defined by its own 2002 Spectrum Force (“SPTF”): To quantify permissible levels of interference on a service-by-band basis. growth in demand for wireless data transport will strain current spectrum allocation and commercialbusiness models to the breaking point. of Silos and lightly-used spectrumexclusively-licensed will no longer be tolerable. The imperativeuse of spectrum of increasingly efficient on both an exclusive and sharedthat we need basis suggests to redefine access rights to spectrum capacity the next decade to be: over interference”). Spectrum Policy Reform (Nov. 7, 2002), Spectrum Policy Reform (Nov. 7, 2002), out the (listing http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-228542A1.pdf SPTF’s recommendations, includin D.C. Calabrese also currently serves D.C. Calabrese also currently serves Management Advisory Committee (“CSMAC”). Management Advisory Committee (“CSMAC”). Although Commission staff agreed with a consensus among industry commenters that the “interference temperature” measurements suggested a non- Program, at the New America Foundation, Senior Research Fellow and Director, Wireless Future is a Michael Calabrese 33. D 512 30555_cdt_9-2 Sheet No. 93 Side B 08/09/2011 09:04:54 B 08/09/2011 93 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 94 Side A 08/09/2011 09:04:54
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36 policy goal to stimulate the EVOLUTION meet public’s need the for new R the concept of quantifying the of quantifying concept the 35 n of the twentiethin the first half ADIO , ET Dkt. No. 03-237 (May 4, 2007), Dkt. No. 03-237 (May 4, 2007), , ET ent set that receivers would not be ent set that receivers would not R and radio operating rig low-cost reception devices (radios, TVs, reception devices low-cost Interference Temperature Metric to Quantify and Temperature Metric to Quantify Interference NFINISHED NFINISHED continued use of a case-by-case, U HE Report & Order , ET Dkt. No. 04-151 (Mar. 16, 2005) (suggesting that a non- a that (suggesting 2005) (Mar. 16, Dkt. No. 04-151 , ET FCC, Wireless Operations in the 3650-3700 MHz Band, MHz 3650-3700 in the Operations Wireless FCC, 6/21/2011 ELETE D . See, e.g., e.g., See, . Outdated Assumptions of CommandOutdated Assumptions Interference & Control Protection All of these precepts continue to underlie the licensing of radio All of these precepts continue to The policy of protecting receivers “harmful interference” from Today’s spectrum allocations OT 36 N http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-78A1.pdf. http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-78A1.pdf. O M K services and overall communications capacity. access to a channel or band presumed that (a) technology and governance rules could capacity, not support the shared use of underutilized except from interference at all (viz.,perhaps where there was no protection on (b) there were still sufficientdesignated unlicensed bands); and allocations and assignments available to reaction to complaints). Moreover, the concept of licensing and later, analog cell phones) in a context of relative spectrum abundance. Since there was spectrum enough to allocate guard bands several times in use, larger than the actual channels the cost of receivers could be minimized and a preced expected to tolerate any degree of interference from other uses. became simultaneously absolute (rather than probabilistic or contingent) and vague (since it was defined service-by-service, and only reflect a dichotomy betweenreflect a dichotomy the relative availability of spectrum and technology that existed during the first or more of spectrum half-century government When itself today. licensing—but reversed has nearly which licensed broadcast radio and televisio century, spectrum was plentifultechnology was but primitive. Both assignments and rights reflectedindustrial an mass-market penetration of very adjudication of interferenceadjudication claims will increasingly cause uncertainty, under-investment.delay, and FCC, Establishment of an Certain Fixed, Mobile Unlicensed Operation in Manage Interference and to Expand Available 35. Satellite Frequency Bands, and at Memorandum Opinion & Order accommodate wirelessexclusive licensing approach would more by employing ISPs technology harmful interference). that avoids and coordination by the SPTF appeared unworkable, appeared SPTF by the D 2011]T explicit transmit rights and reception protection that a licensee can count can that a licensee protection and reception rights transmit explicit not absolutea probabilistic and on—on better permit basis—would band and shared issues of interference to self-manage private parties contrast, theaccess. In operating rights—whether to commercial users by the FCC, or to federal users by NTIA—and all are outdated obstacles to an exponential increase in mobile communications capacity. C Y 30555_cdt_9-2 Sheet No. 94 Side A 08/09/2011 09:04:54 A 08/09/2011 94 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 94 Side B 08/09/2011 09:04:54 M K
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38 CON , FCC Rcd. Rcd. , FCC E
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. [Vol. 9 [Vol.. 37 First Report & Order made this point: made this point: erving any unused spectrum rating should be based rights on hts and governance that may seemhts and governance be achieved by a combination of protection, not its non-use. ted that “spectrum is not, and has never been, never has ted is not, and that “spectrum J. L ON TECH. HIGH & TELECOMM. The Federal Communications Commission Communications The Federal governance changes: and 6/21/2011 Define explicitDefine rights transmit interference on and permissible a band-by-service basis. ELETE The Federal Communications Commission D An Updated Radio Rights Regime Regime Rights Radio An Updated For new and renewed licenses, should the Commission make the In practice, I believe this can An updated conception of radio ope Meeting society’sfor mobile communications capacity demand will It is sometimes implied that the aim of regulation in the radio the radio in the aim of regulation that implied It is sometimes be would But this to minimize interference. industry should be output. maximize be to wrong. The aim should 1. OT N O emit on the band, the Commission firmly sta band, the Commission emit on the the Commission’s 15 of Part Revision of licensee or user.” any other or to exclusive to Sprint Systems, Transmission Ultra-Wideband Rules Regarding 37. Ronald H. Coase, H. Ronald 37. (1959). recent fairly argument that authority, as well as the Commission’s and explicit rejection of the licensing FCC’s of the definition statutory both the 38. from follows this Of course, it does not have the legal right to authorize users of Ultra Wideband devices to emit energy in presume exclusive rights to its license rights Rejecting Sprint’s claim that bands. licensed PCS D 514 10,505, ¶ 271 (2002). 271 (2002). 10,505, ¶ complete set of transmission rights (e.g., transmit power, out-of-band emissions) explicit. The Commission should also define the level of protection the own operations, licensee can expect for its although this definitional policy goals pervasive connectivity.that promote It will be far more to put rules inimportant place that spur innovation and maximize communicationscapacity it is to minimize than interference per se. 1959 Ronald Coase’s passages from of the most oft-quoted Indeed, one article capacity to the public itself. Since the interest public in government lies entirely in the use of the excluding others from a band (i.e., licensing) spectrum to communicate, it is the licensee’s service—viz., its actual use of the band’s capacity—that deserves contradictory by today’s standards. We need to simultaneously make We need to simultaneously today’s standards. contradictory by more likespectrum use rights property (more explicit and certain for the period granted)making while also the overall communications capacity of the spectrum less like property (non-exclusive and open for shared licenseesaccess). That is, we need to provide certainty and flexibility concerning their operating rights—thereby facilitating private negotiations and transactions—while also res require a concept of radiorequire a concept operating rig 30555_cdt_9-2 Sheet No. 94 Side B 08/09/2011 09:04:54 B 08/09/2011 94 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 95 Side A 08/09/2011 09:04:54
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UTURESPACE without causing Michael Whittaker, Whittaker, Michael , F See 515 plicit transmit rights for all new plicit transmit rights for both innovation and more what they actually are doing. actually they what non-exclusive definition of ploy dynamic spectrum access unused capacity EVOLUTION ve spectrum access algorithms at R
ADIO The Path to Market Success for Dynamic Spectrum Spectrum for Dynamic Success to Market The Path R ., May 2007, at 96, 100. Australia established a established Australia 96, 100. 2007, at ., May AG M fine a complete set of ex NFINISHED NFINISHED NS U ’ and industry self-regulation. industry and HE
OMMC 39 C
, IEEE 6/21/2011 Combine explicit rights andCombine explicit of parameters actual operating licensees in a database. public ELETE D are to maximizeIf key policy goals useable spectrum capacity and The current opaque and uncertain definition of rights for 2. OT N O M K Access Technology 39. & William H. Lehr, John M. Chapin should be defined in probabilistic rather probabilistic in be defined should These terms. absolute than service-by-band be defined need to would first defined, when rights, and as consistent as possiblewith neighboring adjacent-co-channel and licensees. acceptably low risk.” D 2011]T facilitate innovation, into we should want complete transparency then have a right to do and both what licensees licenseesThis enables other to design their systems, use of to change the a band, orto attempt to coordinate and/or negotiate users. with other It potentialalso enables other users to em to make use of technologies or protocols harmful interference. Depending on the this dynamic band, access could opportunistic be it could on secondary market transactions,or based be and/or unlicensed. Access to any band with a primary user must be conditional; but a centralized, online information registry “enables secondary users to execute more aggressi 2009), http://www.futurepace.com.au/_lib/pdf/DSA.pdf. 2009), http://www.futurepace.com.au/_lib/pdf/DSA.pdf. licenses to encourage certainty licenses to encourage Management Space-Centric Access Under Spectrum Authorising Dynamic centralized online device database along these lines as part of its 1997 adoption of Space- of adoption 1997 of its as part lines along these centralized online device database Centric Management as a tool to de incumbents and potential entrants alike deters intensive resource. It is critical and efficient use of the public’s spectrum to keep in mind that spectrum is an infinitely-renewable public resource, unused is wasted. A any capacity that goes and from second-to-second more definite, transparent, and explicitly spectrum use rights on a band-by-band basis will be criticalspectrum use rights on a band-by-band to supplying the capacity for pervasive connectivity. C Y 30555_cdt_9-2 Sheet No. 95 Side A 08/09/2011 09:04:54 A 08/09/2011 95 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 95 Side B 08/09/2011 09:04:54 M K C Y PM PM
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Because C 40 44 SSENTIALS OF SSENTIALS OF E
tion measures. .,
John Williams is a The Unfinished Radio Radio The Unfinished 41 LATIRONS F EGULATION . [Vol. 9 [Vol.. R AVE ET AVE AL ILICON ILICON ILLIAMS C
, S W M. exible use band are based on an t incumbents have the right to r additional mitiga OHN Advisor at the FCC. at the FCC. Advisor J see also see nts are being cleared from a band that is being are nts NTERFERENCE I 4-8 (2007). 4-8 (2007). note 37; WEREL AND WEREL AND supra supra J. L ON TECH. HIGH & TELECOMM. K OOKING OOKING ANAGEMENT ANAGEMENT -L M VAN
Coase, Coase, E 43 The FCC has recognized this and since the early 1990s has this and since the early 1990s The FCC has recognized 6/21/2011 42 Personal Communications Services, 47 C.F.R. pt. 24. 47 C.F.R. Services, Personal Communications ORWARD PECTRUM PECTRUM S F ELETE D . See . See generally Rules protecting the adjacent band incumbents are based on a long To facilitate the transition of spectrum the transition To facilitate highest to its valued use What is less well known isWhat is less well approach to that the FCC’s sequential OT 43 42 N ODERN ODERN O repurposed for flexible use. For example, incumbent point-to-point systems in the PCS band PCS repurposed for flexible use. For example, incumbent point-to-point systems in the as interference “which § 2.1 on such protection. Harmful interference is defined in 47 C.F.R. 44. are generally protected users from harmful interference Incumbent with no time limit seriously safety services or service or of other a radionavigation of functioning endangers the service.” The only degrades, obstructs, or repeatedly interrupts a radiocommunication incumbe of is where think exception I can under a flexibleunder a its the FCC revisit we propose that licensing regime, general providingpolicy of protection licensed first) incumbents (those against any interference subsequent rule changes. It is well resulting from known that limiting spectrum licensees to providing specific services (“command and control”)using specific technologies can seriously retard such as cellular new highly valuable technologies, the adoption of telephones.
were protected for a period of time, during which time they could negotiate a premium time they could were protected for during which a period of time, payment to clear, after which time they were required to vacate as the new PCSas long licensee covered thea replacement actual cost service. of To my knowledge, the FCC has never adjacent band incumbents. protect restrictions imposed to sunsetted of this, incumbents feel little or no pressure generally from the regulator to improve filtering or implement othe The additional limits imposed on the fl interference model using the incumbent’s system parameters and M 40. Papers, found at Position can be A more detailed exposition D 516 been providing and technological for service flexibility for most newly allocated bands. accommodating with its interference protection change coupled policy toward incumbent also be detrimental uses can putting to spectrum to its highest value use. When considering a new allocation or request for a Commission generally considers one change in interference rules, the item at a time assuming everything else will remain as is. tradition in spectrum management tha virtually absolute protection from interference from new users. virtually absolute protection from interference consultant at Ambit. The opinions expressed in this paper are those of the authors and do not and paper are those of the authors in this expressed The opinions at Ambit. consultant members of its staff. FCC or any other necessarily represent the views of the 12, 2010, http://www.silicon-flatirons.org/documents/conferences/2010.11.12- 12, 2010, 862/Compendium.pdf. Economic Evan Kwerel is a Senior 41. Revolution: New ApproachesRevolution: New to Handling Wireless Interference 30555_cdt_9-2 Sheet No. 95 Side B 08/09/2011 09:04:54 B 08/09/2011 95 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 96 Side A 08/09/2011 09:04:54
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46 available at available that those bands that those bands This often results often results This 45 517 assuming While such restrictions may on the flexibleon the usethat band 48 EVOLUTION most of that cost off to someone R of any new allocation of in terms ulated would remain so hides the otecting the new allocation from ADIO R the functionality band. of that NFINISHED NFINISHED U HE These restrictions can be more stringent than would 47 , FCC 03-251, ¶ 87, 112-131 (Nov. 25, 2003), 2003), 25, (Nov. 112-131 ¶ 87, 03-251, , FCC 8/1/2011 . . . ELETE D . Id . Id . Id Future allocations should self-protectFuture allocations projected adjacent against band Adjacent band interference protection for incumbents should not be staticAdjacent band interference protection interference This would internalize the total spectrum cost of accommodating When the FCC establishes a new flexible use allocation, power and When a new allocation is made and there are no incumbents in an OT 46 47 48 N O M K Report & Order 45. GHz Bands, in the 1.7 GHz and 2.1 Service Rules for Advanced Wireless Services http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-251A1.pdf (describing (describing http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-251A1.pdf bands). AWS-1 to the for incumbents adjacent interference protections parameters of “expected”licensees. flexible for the use D 2011]T would be licensed under the flexible usewould be licensed model. We propose that the interference rules and assumptionspr interference from adjacent the bands be designed in such a way as to adjacent bands for as possible the full potential of the preserve as much flexible licensingfuture use under a regime. a So, if the adjacent band has high potential for transition to flexible use, it would not be subjected to technical limits (power, permissible classes of stations, more etc) stringent use bands. than would normally apply between adjacent flexible Since this policy may, in raise the cost of a new allocation, some cases, it should be accompanied with a commitment FCC to actually by the transition the adjacent bands to a flexible regime. or the new use rather than passing some its impact on the spectrum whereas current policy which assumes an adjacent band that is now sparsely pop other restrictions are often imposed that band on to protect incumbents in adjacent bands. else. It would better also provide incentives to build interference- more robust systems upfront when it is most efficient to do so. It would also make transparent the opportunity cost full cost of a new allocation.
in additional restrictions and other power flexible apply between than those that more stringent are significantly use bands, with the effect of reducing normally apply between flexible-use bands. adjacent band or the band is lightly used under a command/control type the band is lightly used under a command/control adjacent band or allocation, the FCC should require thatagainst licensees self protect interference exposure from adjacent band(s), C Y 30555_cdt_9-2 Sheet No. 96 Side A 08/09/2011 09:04:54 A 08/09/2011 96 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 96 Side B 08/09/2011 09:04:54 M K C Y PM PM
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49 an adjacent band, restrictions to bands within the FCC’s of incumbents, can greatly they A Proposal for a Rapid Transition to Market for a Rapid Transition A Proposal could make all parties better off. a change in the rules, holdout problems, changing interference regulation bands with traditional services such as J. L ON TECH. HIGH & TELECOMM. e.g., (FCC Office of Plans and Policy, Working Paper No. 38. Nov. 2002). No. 38. Nov. 2002). Paper Working and Policy, of Plans Office (FCC 6/21/2011 Evan Kwerel & John Williams, ELETE D . See Market failures justifying Second, even when most rights haveSecond, even when most rights been assigned, but many To address that when a new flexible use allocation this, we propose Why not rely on the market to efficiently resolve these interference We would also extend this approach retroactively within theextend this approach retroactively We would also OT 49 N O Allocation of Spectrum Allocation of
reduce the potential value of the newly of the value the potential reduce Under band. allocated static these protectionpolicies, incumbents have little incentive to implement even measureslow cost to protect themselves go to the benefits would since someone else. Bargaining between new incumbents licensees and in bands is also generallyadjacent due to high ineffective costs. transaction The resulting economic loss over worsens time the as value of adjacent and the cost ofspectrum increases mitigation technology decreases. be equitable to protect theto protect be equitable investments D 518 free riding, costs may prevent and generally high transactions achievement of a deal that potentially licensees must agree to negotiate is made and there are incumbents in are incumbents is made and there incumbents against adjacent allocation to protect imposed on the new reducedmirrortimeinterference be to protections over thesame adjacent flexible use bands. provided between broadcasting where there is in “white space”) a new licensee an adjacent band has no one to negotiate a system with to design that minimizes the total cost of interference. You can’t negotiate with future licensees. The direct solution would be to assign all rights. But when most of the licensed users this is difficult.spectrum is occupied with traditionally this issue. Kwerel and Williams (2002) address jurisdiction) would be reduced to the same level as applies between flexible use bands. Again, by a commitment this would be accompanied candidate bands by the FCC to actually transition those to flexible use so that the benefits can be realized. problems? What are the market failuresthat would justify such a policy change? First, when not all rights have been assigned there is nobody to negotiate with. When an adjacent band is not licensed or not all the rights are assigned ( valuable 300 to 3000 MHz range to restore functionality to bands that range to restore functionality to 3000 MHz valuable 300 are good candidatesflexible use. Any stringent for power other or restrictions that currently to those bands designed to protect apply adjacent band incumbents (limited 30555_cdt_9-2 Sheet No. 96 Side B 08/09/2011 09:04:54 B 08/09/2011 96 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 97 Side A 08/09/2011 09:04:54
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(Oct. 6, R ADIO ADIO available at R and a new available at available Report & Order, Report & Order,
56 52 PECTRUM S , WT Dkt. 02-55 PR Newswire, IEH S
s largely unanswered. s largely unanswered. 519 A.
PPROACH TO TO PPROACH see also see 50 (2002), (2002), A Report and Order and Second Report Report Second and Order and Report n is well under way, but then is well under way, ALEB EPORT OF THE OF THE EPORT ROUP EVOLUTION K R
R G , IGHTS R NERGY NERGY ADIO E AND R ORCE 51 F
rating rights should be defined, assigned rating rights should , Sept. 1, 2010, http://www.prnewswire.com/news- 53 ASK ASK RIES lack of clarity concerning cross-channel ORKING ORKING T NFINISHED NFINISHED aking-to-auction-spectrum-with-free-broadband- V W U PERATING PERATING 55 ESULTING ESULTING O HE R wireless operations remain wireless operations OLICY
P A
: S IERRE DE IERRE DE P P
the FCC changes the license rights after auction but beforethe FCC changes the license rights J. PECTRUM 54 S 6/21/2011
HREE HREE M2Z Networks, Inc., Application for License and Authority to Provide National National Provide to Authority and for License Application Inc., Networks, M2Z ESPONSIBILITIES ESPONSIBILITIES T R , WT Dkt. No. 07- 293, ¶ 5 (May 2010). 2010). ¶ 5 (May Dkt. No. 07- 293, , WT ELETE D . See HE The ambiguous definition of rights is a long-standing problem. For of rights is a long-standing The ambiguous definition A review of U.S. interference conflicts stemming from unclear The radiorevolution is incomplete. The “command shift from and OT 56 T N O M K http://fjallfoss.fcc.gov/ecfs/document/view?id=6518725080; http://fjallfoss.fcc.gov/ecfs/document/view?id=6518725080; vital question of how radiovital question of how ope example, the Spectrum FCC’s 2002 noted a Policy Task Force widespread sentiment that “the Commission’s most difficult, unsatisfactorilycontroversial, and resolved cases have resulted from situations inan incumbent’s which the extent of spectrum rights and and itsinterference rights, limitation on impacting other bands or users, were not clearly understood by the incumbent, by a new service provider, and even by this Commission.” control” radio a more licensing to hands-off regimeflexible-use of auctioned licensesunlicensed and operatio and enforced in order to resolve interference disputes and obtain the benefit from maximum Terminates AWS-3 Rulemaking to Auction Spectrum with Free Broadband Requirement; Breaks Breaks Requirement; Broadband Free with Spectrum to Auction Rulemaking AWS-3 Terminates National Broadband Plan Commitment releases/fcc-terminates-aws-3-rulem Jan. (last visited requirement-breaks-national-broadband-plan-commitment-101967093.html 11, 2011). Broadband Radio Service in the 2155-2175 MHz Band (2006), Radio Broadband renewal (WCS/SDARS); protections leads to protracted proceedings (AWS-3); AND 2010) http://papers.ssrn.com/abstract=1704194. 2010) http://papers.ssrn.com/abstract=1704194. FCC 51. Boulder. Center, University of Colorado, Silicon Flatirons Fellow, Adjunct Senior 53. 52. Boulder. of Colorado, Center, University Flatirons Silicon Research Fellow, Radio Rights Delegating and Defining by Unambiguously Operation Concurrent Increasing Sieh, A. 50. de Vries & Kaleb at J. Pierre be found A more detailed exposition can D 2011]T www.fcc.gov/sptf/files/SRRWGFinalReport.doc. www.fcc.gov/sptf/files/SRRWGFinalReport.doc. Fifth Report & Order, Fourth Memorandum Opinion& Order, & Order 54. the 800 MHz Band, in Safety Communications Improving Public 15 (July 2004). Band, GHz Services in the 2.3 Wireless Communications Commission’sof Part 27 of the Amendment Operation Rules to Govern the of 55. and Order cross-channel rights reveals instances where: two (or more) licensees are both operating within their licenses but unable to operate concurrently (800 MHz); C Y 30555_cdt_9-2 Sheet No. 97 Side A 08/09/2011 09:04:54 A 08/09/2011 97 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 97 Side B 08/09/2011 09:04:54 M K
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and 1:30 60
, 15 (Oct. , 15 APITALISM C , Hernando de , Hernando transactions. HY (noting that “the , WT Dkt. No. 02- ing Energy Approach Energy Approach ing greatest across greatest d interference rights, d interference rights, W
see also see
: note 53 (2000); (2000); . [Vol. 9 [Vol.. APITAL C the regulator’s willingness LSE Report & Order & Second Report & & Report & Second Order & Report 59 E supra supra
ion’s Rules to Govern the Operation of Rules to Govern the ion’s , t’s spectrum rights an of interference to operators; and The Three Ps: A Result A The Three Ps: unsatisfactorily resolved cases have resulted unsatisfactorily towards protecting users, were not clearly understood by the by the clearly understood users, were not ORCE based on three principles: (1) aim 47 C.F.R. § 27.1133. 47 C.F.R. § 27.1133. F YSTERY OF OF YSTERY . no. 1, Mar. 2001, at 29. at 1, Mar. 2001, . no. ers, Petition for Reconsideration M VERYWHERE EV see also ASK E technical parameters do not define that This has led to protracted conflicts and This has led to protracted D Inter-operator is conflict
T 58 61 HE & ganize the most economically and socially ganize the most economically and T 57 AILS
, F 47 C.F.R. § 27.1133 (2003). (2003). 27.1133 C.F.R. § 47 OLICY J. L ON TECH. HIGH & TELECOMM. OTO P INANCE S see also 38 F EST AND AND EST W http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1704194. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1704194. PECTRUM PECTRUM S 6/21/2011
J. Pierre de Vries & Kaleb A. Sieh, J. Pierre de Vries & Kaleb The Society for Broadcast Engine 47 C.F.R. § 2.102(f) (2003); (2003); § 2.102(f) C.F.R. 47
ERNANDO DE DE ERNANDO ELETE D . See . See . See available at available In this spirit, our approach is Scholars seeking quick ways to build coherent and efficient property Current radioCurrent uncertain rights are operating of the due to: the use Mystery of Capital, Capital, of Mystery , WT Dkt. No. 07- 293, ¶160. ¶160. No. 07- 293, , WT Dkt. OT 61 57 58 N RIUMPHS IN THE IN THE RIUMPHS O That Increases Concurrent Operation By Delegating the Optimization the By of Operating Delegating That Rights Concurrent Operation Increases H 2010), 62. Soto, Order regulation at maximizing concurrent operation, not minimizing harmful interference; (2) delegate management Importantly, the rules should be clear and enforced in an efficient and Importantly, the rules should be clear predictable manner. (3) define, assign and enforce entitlements in a way that facilitates transactions. T 2007); (Mar. 8, 353, ¶ 6 entrant discovers an unforeseen need an unforeseen discovers entrant to remedy to adjacent harm channel (AWS-1/BAS). incumbents D 520 59. FCC 59.
unexpected costs, whichunexpected costs, in turn inhibit innovation and investment. developing countries have derivedrights systems for best practices and what theykey elements from consider rights systems. successful property According property rights system should: to one analysis, a successful real (1) capture, describe, and or useful aspects of an asset; and (2) have formal rules for the description organization of this information; (3) preserve the information in a recording and (4) be tilted system; to alteroperating rights at any time during of the license; the term ineffective delegation to operators of the means and incentives to operators of the means ineffective delegation to negotiate bilateral resolutions. Commission’s most difficult, controversial, and Commission’s extent of an incumben in which the from situations or other bands impacting on its limitation and Commission”). new service provider,a and even by this by incumbent, in the 2.3 GHz Band, Services Wireless Communications 60. of the Commiss Amendment of Part 27 FCC, the bounds of allowed operation objectively; the bounds of allowed boundaries between different service types and the increasing service typesbetween different boundariesand the ofdiversity radio as well uses and users, need as the pack operations to ever closer amplify the problem. will only serve to together, interference criterion;harmful 30555_cdt_9-2 Sheet No. 97 Side B 08/09/2011 09:04:54 B 08/09/2011 97 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 98 Side A 08/09/2011 09:04:54 PM PM
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521 EVOLUTION R regulator should clearly separate medies in a license, the regulator ADIO R the full and complete description of NFINISHED NFINISHED U HE gotiation fail, adjudicators. 8/1/2011 ELETE D Define radio operatingDefine rightsthrough and permissions probabilistic Limit the ability of the rule rights maker to adjust Record entitlements in a public registry protections, without reference to harmful interference to harmful reference without protections, We propose operating that be articulated rights should using Since the initial entitlement point is unlikely to be optimal, or In the radio license context, OT in its capacity as an adjudicator. The N O M K D 2011]T probabilistic transmission permissions and reception protections (“Thereceptionprotections transmissionprobabilistic and permissions propagation Since the radio Three Ps”). environment constantly, changes valuesparameter probabilisticallyshould be defined of as a percentage times and locations.Transmission permissions should be based on resulting a range of locations and frequencies, field strength over rather than the radiated power Reception protections at a transmitter. should state the maximum outside energy an operator can electromagnetic levels are an profile; protection expect over a location/frequency when making these ceilings undertaking to implement by the regulator but importantlyother allocations, form an entitlement do not against other, existing formulation of operating operators. This rights does not require a definition of harmful interference. Quantifying and addressing remainsharmful interference a very important topic, but is delegated to operators and, should ne remain optimal for veryit can to long, the regulator should do all facilitate adjustment of rights after process, the number the fact. In this of parties to a negotiation should be limited, both through rights assignments that minimize the number of recipients as possible, as much and by the regulator enabling direct bargaining between the parties. The regulator should stipulate the remedies that attach to an entitlement (i.e. injunctions or damages) not when it is issued, and decide things such hoc rulemaking, where it plays an essential entitlements, role in defining from the enforcement/remedy its role, phase where if a court is not available,on the basis of existing should be limited to adjudication rules. Notably, the refrain, regulator should the to extent possible, from rulemaking when acting as an adjudicator. should leave entitlements unchanged until renewal. However, those same every entitlement—including operating parameters, fixed owner, Three P station locations if applicable, and waivers if any—should be recorded in a public registry. And finally, the regulator should refrain from changing the rules, or adding new ones, in the middle of the game. After defining operating rights, parameters, and re C Y 30555_cdt_9-2 Sheet No. 98 Side A 08/09/2011 09:04:54 A 08/09/2011 98 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 98 Side B 08/09/2011 09:04:54 M K C Y PM PM
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. [Vol. 9 [Vol.. uld be alloweduld adjust though to J. L ON TECH. HIGH & TELECOMM. 6/21/2011 ELETE D The fruits ofThe fruits the radio regulation can thus revolution be gained by OT N O
rights, parametersrights, and remedies sho negotiation operators. between D 522 an objective articulation rights in of the an operating and the license, effective delegation of negotiation and dispute resolution to operators. 30555_cdt_9-2 Sheet No. 98 Side B 08/09/2011 09:04:54 B 08/09/2011 98 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 99 Side A 08/09/2011 09:04:54
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Spectrum Spectrum DVERSE DVERSE A OMMENT ON OMMENT , 17 FCC Rcd. , 17 FCC C OTICE N UBLIC P 523 UBLIC Spectrum Policy Reform and the the and Reform Policy Spectrum EEKS OCTRINE OF P S D . 549 (2008) [hereinafter [hereinafter (2008) . 549
* ng a market-based approachng a market-based EV
R
EVOLUTION and the wider acceptance of OLICIES EPORT EPORT R L. ELD P sale of the property at fair market value for at simply defining and enforcing R ption to the right of an owner to F r from certain uses of the land that would that would of the land r from certain uses ADIO R AND AND THE ASON ” ORCE M F
59 (8th ed. 2004) (defining adverse possession).59 (8th ed. 2004) . OSSESSION PECTRUM AROLD S P EO S ASK ’ H NFINISHED NFINISHED IGHTS T U R HE ctions, those favori , 60 G , 60 Phil Weiser & Dale Hatfield, ICTIONARY D OLICY have focused on the definition have focused on the property of spectrum P note 37. and one should expect similar and one should expect to emerge exceptions 63 OMMISSION AW see also see 65 C L Kelo v. City of New London, 545 U.S. 469 (2005). The doctrine of (2005). 469 U.S. 545 of New London, Kelo v. City S ROPERTY ROPERTY ’ supra This exception amounts to a recognition by that the law See See 66 “P 6/21/2011 PECTRUM PECTRUM LACK ] (describing difficulty in establishing clear definition of spectrum property rights spectrum property rights of clear definition in establishing difficulty ] (describing Coase, B S ELETE ELATED TO ELATED D R . See . See . See Of particular relevance, the doctrine of “adverse possession” Since the introduction of auctions This basic concept has important lessons for spectrum policy and This basic concept has important Legal Director of Public Knowledge, http://www.publicknowledge.org. http://www.publicknowledge.org. Legal Director of Public Knowledge, * OT 64 66 63 N PECTRUM PECTRUM O S SSUES M K Next Frontier of PropertyNext FrontierRights of
for similar policy. reasons in spectrum provides circumstances under which the right of a property holder yields to a squatter. nuisance constrains the ability of a landowne of ability the constrains nuisance land development of new Further, in cases interfere with a neighbor’s quiet enjoyment. where required typically law the common access, plot ready a neighboring owner of may deprive the the property owner to provide to hisand egress. neighbor access an easement for expel a trespasser, property law creates a necessary safety valve for dealing while simultaneously preserving thewith extraordinary circumstances stability and predictability that make property rights useful. at a certain threshold the rights of the owner yield to the reliance interest of the community generally and the “facts on the ground.” By embracing, defining, and limiting this narrow exce these rights will resolve all problems that will emerge. The doctrines of that will emerge. all problems these rights will resolve significantreal property include exceptions based good and on common common reliance, But even if one accepts theBut even if one accepts premise basic that defined and easily traded wireless services development of rights enhance overall spectrum property and technologies, it does not follow th rights as the means to maximizerights as the means efficient the development of spectrum. Policy Reform necessity of overcoming difficulties). but arguing for public purposes. 65. For example, the government may force a 10560 (June 6, 2002); 10560 (June I
D 2011]T
for spectrum access secondary market transa secondary definitions of spectrum property rights. C Y 30555_cdt_9-2 Sheet No. 99 Side A 08/09/2011 09:04:54 A 08/09/2011 99 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 99 Side B 08/09/2011 09:04:54 M K
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Low Power Low Power
Fifth Report & Fifth Report & available at After a lengthy After a lengthy 68
. [Vol. 9 [Vol.. Despite clear definitions 67 zing the Operation of the Operation zing Because these unauthorized note 70. note , 25 FCC Rcd. 643 (Jan. 15, 2010) (Jan. 15, Rcd. 643 FCC , 25 retailers had sold hundreds of 72 venues ranging Broadway from supra
Order blic safety systems by Nextel’s caused nciples that both cabin the exception both cabin the nciples that , 19 FCC Rcd. 14,969 (2004). The history The history is (2004). 14,969 , 19 FCC Rcd. J. L ON TECH. HIGH & TELECOMM. Revisions to Rules Authori to Revisions ss Microphone Order],
Wireless Microphone Order, Microphone Wireless , FCC, , FCC, 69 , 8/1/2011 47 C.F.R. § 74.832 (2005). (2005). § 74.832 47 C.F.R. ¶¶ 217-231. ¶¶ 217-231.
Unfortunately, manufacturers and ELETE 71 D . See generally . See . See . See generally . See . Id. . Id. Examples of Difficulties Despite Clear Definitions of Spectrum Rights: The The Rights: of Spectrum Definitions Clear Despite of Difficulties Examples 800 MHz Rebanding and the 700 MHz Wireless Microphone Order Order Microphone Wireless MHz the 700 and Rebanding 800 MHz Two examples circumstances how exceptional illustrate can arise interference a long-standing the FCC resolved In 2004, dispute It is tempting to blame the FCC for its failure to enforce the blame the FCC for its failure It is tempting to The FCC found itself faced with a similar situation regard to with OT 70 71 72 69 68 N O
Auxiliary Stations in the 698-806 MHz Band, Band, MHz the 698-806 in Stations Auxiliary [hereinafter Wirele http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-92A1.pdf. the illegal use of wireless microphones inthe illegal use of wireless microphones television the broadcast bands. of rights and FCC support forof rights and FCC market-based resolution of interference problem eventuallycomplaints, the grew to involve millions of of public safety systems. subscribers and thousands thousands (if not more) of wireless microphones operating on the 700 thousands (if not more) of wireless MHz band to numerous unauthorized theaters to megachurches to karaoke bars. Since the 1970s, the FCC had permitted only television and cable numberprogram producers (and a limited of others) to operate in these bands. & Order Opinion Memorandum Fourth Order, 67. Band, MHz 800 the in Safety Communications Public Improving summarized in ¶¶ 13-14, 36-46. ¶¶ 13-14, 36-46. summarized in D 524 proceeding, Nextel to transfer its operations the FCC required Sprint to a different band. commercial operations in the 800 MHz band. commercial operations and the value of definingand the value pri a set of and provide resolution. a roadmap for Sprint Nextel) and the publicbetween Nextel (later safety community resulting from the interference to pu users did not cause interference with broadcast television, increasing their “property rights” of public safety requiring licensees by immediate shut down of Nextel’s systems. of But the true nature the problem only became clear when Nextel operations expanded dramatically, so that shutting it down would have imposed significant on millions costs of rulessubscribers. At the same time, FCC the public and interest required that the FCC licensees from Nextel’s “trespass.” The protect public safety that had nothing to do with the FCC therefore imposed a solution definition or enforcement of property rights and everything to do with finding the competing a working balance among interests. 30555_cdt_9-2 Sheet No. 99 Side B 08/09/2011 09:04:54 B 08/09/2011 99 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 100 Side A 08/09/2011 09:04:54
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arise, as they 525 rs had acquired an equity channels (thebroadband for d against theird against displacement part of thetransition to digital EVOLUTION R After two years, however, the
ations will continue to to have prevented the problem 75 77 ADIO R ghts,to swift and access enforcement y deals with these situations by addressing these situations with y deals Under the rights defined by the FCC’s Under the rights 74 NFINISHED NFINISHED U HE manner through mechanisms like the doctrine of like the doctrine manner through mechanisms authorized systems. 6/21/2011
73
. . . . ELETE D . Id . Id . Id . Id. . Id Some Basic Lessons In both these caseswas no doubt thereboth these answer In as to the “correct” Recognition with a set of that exceptional cases arise combined Clear definitions of licensee ri Wireless microphone usersWireless proteste OT 73 74 76 75 77 N O M K Although proceedings the FCC continue, adopted a general solution that the wireless microphoneretroactively legalized operators and allocated the 700 MHz band. them channels off under the existing definition of rights, and no further definition of rights would have prevented the situation from occurring. Nor as a practical matter could be expected the FCC through enforcement.point where By the time the situation reached a swift, widespread enforcement was necessary, it was too late. guiding principles would have allowed the FCC to solve these use preventingconflicts in a straightforward manner, of delay. Instead, years withthe FCC found itself confronted an apparently irreconcilable conflict between enforcing the rights the licensees of the practical and consequences of such an action. As a result, it dealt with each situation as to develop a solution. a unique circumstance requiring years other to yield rights of licensees must the where context, property real the in do law considerations. The of real propert them in a straightforward same. to do the learn policy must Spectrum adverse possession. mechanisms, will benefit all users of wireless by enhancing the ability of licensees ability the enhancing by wireless of all users will benefit mechanisms, to engage in efficient transactions. But situ
numbers went unnoticed went numbers until FCC the to authorize a proceeding began unlicensed use of unassigned television D 2011]T white“broadcast to MHz band reallocate the 700 spaces”) and to commercial safety and public licensees as television.
from the 700 MHz band and potential interference from newly interference from and potential 700 MHz band from the authorized white space devices.
FCC reluctantly concluded thatFCC reluctantly the squatte operation despite their interest in continued status as illegal operators. rules, the FCC should have simply orderedrules, the FCC should the wireless microphone “spectrum squatters” operation to cease a minimum, or, at suffer interference from C Y 30555_cdt_9-2 Sheet No. 100 Side A 08/09/2011 09:04:54 A 08/09/2011 100 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 100 Side B 08/09/2011 09:04:54 M K
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How is 81 ENEFIT ENEFIT SSIGNED B A
, fortunately too As someone who As someone who 79 ? EFINED AXIMUM D M . [Vol. 9 [Vol.. has improved, more but for
78 In any of these cases, harmful PERATIONS 80 IGHTS BE IGHTS O R processes. Engineers to know need ble jurisprudence that can minimize BTAIN THE BTAIN and several others un and ACOBS J O cluding how it is to be measured. ad hoc RUCE IRELESS B W PERATING PERATING RDER TO RDER O J. L ON TECH. HIGH & TELECOMM. O note 15. note 15. Winthrop Shaw Pittman. Winthrop Shaw FROM supra ADIO ADIO R pp. 519-22. pp. 519-22. pp. 519-22. 6/21/2011 Goodman, NFORCED IN HOULD E ELETE S D . See supra . See supra . See . See I agree completely with the premise of J. Pierre de premise of J. with the I agree completely Vries’s paper Ellen Goodman’s San Diego Law Review article makes the Ellen Goodman’s San Diego Law I do not want to minimize the difficulty of the task. Let’s take OT 79 81 80 N OW AND AND O H that energy going to be measured? Ellen’s article points there is out that no commonly agreed way to measure emissionsin a given levels geographic area, which is understandable given the complexity. Do you use actual field measurements or a predictive model? If you take measurements, what antenna and receiver do you use? If you use a What clutter database do predictivemodel is appropriate? model, which you use? What separation distance should be assumed? What height is often where interference should be used? In a mobile environment, 78. Partner, Pilsbury Partner, 78. D 526
the delay inherent in relatively has been working on these issues since 1982 and has been advocating and on these issues since 1982 and has has been working negotiating on behalf of proponents new of many services, including (includingMobile Satellite Service its Ancillary Terrestrial Component), Satellite Radio (including terrestrial Broadband Radio repeaters), Powerline, over Broadband Service, obscure to mention, I have seen firsthand delay the frustration with the the current regulatorythat characterizes process and of defining redefining rights. Over the years, the process optimal technology development and capital investment, we should continue to strive for a more predicta about the benefits ofabout the benefits clarifying radio operating rights. what filters must be developed and what power levels they can rely on in a deployment design and business people who are interested in investing or doing deals must be in a better position to judge their risks. excellent point that we cannot avoid such rights, regardless of defining whether the overall regime is one of command-and-control, shared access, exclusive use, or something regardless of whether the else, and remedy is injunctive relief or damages. interference needs to be defined, in Pierre’s reasonable that rights be established based on field proposal strength spectral density at X% of locations, Y% of the time. 30555_cdt_9-2 Sheet No. 100 Side B 08/09/2011 09:04:54 B 08/09/2011 100 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 101 Side A 08/09/2011 09:04:54 PM PM
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approach, approach, ad hoc potential reallocation 527 the existing body of FCC how it is measured, to see EVOLUTION R dictability. This and other aspects tion costs and ADIO R set of rights for future proceedings. NFINISHED NFINISHED U HE 6/21/2011 ELETE D Given these challenges, it is not clear to me what is the most The FCC has had good reason to prefer has had good reason The FCC a more OT N O M K given the dynamicgiven the the varying policytechnology and nature of For instance, of each case. implications adoption of suggested Pierre’s regime would involve potential reallocation of value an enormous depending on the level of protection (i.e. field strength spectral density at X% of locations, the time) Y% of set time for existing for the first the billions of dollars investedlicensees. Given in systems legacy deployed regime, under the current those decisions would be enormously the potential transition quite costly.controversial and would Moreover, the new uniform level be for all services or would it account for differences in real or perceived protection levels? Does spectrum used for satellite services that necessarily deploy more sensitive receivers have the same protection fixed services as that used for terrestrial that typically operate withlink more How about services like Radio margin? Astronomy? The enormity of the task is obvious. realistic way to make either incremental I or more radical improvement. try to establishlike Pierre’s suggestion that the FCC a protection level approach to measurement), in which for new licensees (along with an case there will not be the same transi of value as there would be for legacy systems.of value as there would be for legacy I also encourage the would task and the potential limitsFCC, despite the complexity of the its on flexibility, to consider attempting to generalize the principles and criteria it uses to set the protection level and measurement approach, to foster a more transparent and predictable One be a compilation starting point might of decisions defining harmful interference and what lessons they offer on defining harmful and measuring interference. The FCC’s past decisions, although not always as transparent as they might be (at least to us non-engineers), provide may a valuable starting point for developing a more predictable jurisprudence and for advancing the process of establishing greater pre of the effort to develop such a jurisprudence might be undertaken with the assistance of, as Mike Marcus suggests, the National Academy of Sciences, or of interested parties with something to gain from greater predictability. fleeting, what probabilistic what fleeting, to each answers The be used? should model impact enormous have an can questions of these and each results on the order be addressed in needs to establish to certainty the we are that looking for. D 2011]T C Y 30555_cdt_9-2 Sheet No. 101 Side A 08/09/2011 09:04:54 A 08/09/2011 101 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 101 Side B 08/09/2011 09:04:54 M K
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A Law & & A Law , 15 , 15 G
.FCC. In order to Property Rights in 83 . 1031 (2008). . 1031 (2008). As demand for EBOOT EV R
RACTICE L. P , R . [Vol. 9 [Vol.. ASON It is not practical within
M 84
. 82 EO . 1025 (2008); Thomas W. Hazlett, Hazlett, Thomas W. (2008); 1025 . ATH EV HEORY AND HEORY R R
, 15 G framework for defining, assigning note 64; Thomas W. Hazlett, 64; note T
L. : M. radio operating rights.radio operating interference rights and consider how supra the customer, and because interference , ASON M IGHTS
. Philip J. Weiser & Dale N. Hatfield, R HARLA Spectrum Dashboard Spectrum EO C , FCC, http://wireless.fcc.gov/uls (last visited May 25, 2011); (last visited May 25, 2011); http://wireless.fcc.gov/uls , FCC, J. L ON TECH. HIGH & TELECOMM. See also See ADIO ADIO , 15 G , 15 R Hatfield on Spectrum Rights on Spectrum Hatfield Spectrum Policy Reform Policy Spectrum
. 975 (2008). . 6/21/2011 EFINING EFINING EV R D
ELETE L. D . See, e.g., There has been as to the usefulness some discussion in the literature For years, academics and other researchers have other researchers academics and For years, been struggling To that end, what is it like to provide an itinerant, dynamic is it like to provide an itinerant, To that end, what OT 84 N ASON O Rejoinder to Weiser and and to Rejoinder Weiser Spectrum: A Reply to Hazlett A Reply Spectrum: M 82. Public Policy, Verizon. Vice President – 2011), and FIOS Growth (Jan. 25, Wireless Cash Flow, by Highlighted Year-End 2010 Results, and Reports Strong 4Q 83. Verizon Release, Verizon, Press http://www22.verizon.com/investor/newsatglance/news.htm?dID=6303&dDocName=NEWS _1107&xCategory=News; D 528 is a costly drag on our network’s capabilities, we must deal with issues of rights and interference critical on a daily basis. It is to our business that and resolve quickly most, ifwe are able to negotiate not all, rights and interference issues without seeking intervention or assistance of the Federal Communications Commission. constantly improve our service to of applying the lessons learned about these kinds of negotiations to the of defininginterferencelarger question rights. with the question of how to define question of how to with the spectrum grows,spectrum this conference and as demonstrates, many are seeking to develop a more robust theoretical and enforcingIt such rights. equally important, however, to investigate is current practice with respect to licensees resolve interference scenariosin today’s marketplace. A frameworkanalysis of the intractable cannot rely solely on large-scale issues such as the competing interference claims often contained in de novo spectrum proceedings, allocation but should explore how licensees, innumerable to do so, trade rights and resolve with the flexibility local interference issues. consumer service that operates 24/7, reaches 289 million Americans and depends on a difficult to manage resource is federally that regulated? Verizon Wireless more than 1500 has nearly 100 million customers, mobile licenses (not to mention thousands more microwave licenses), on severaltens of thousands of cell sites transmitting frequencies and tens of thousands and boundaries. of miles of RF borders http://reboot.fcc.gov/reform/systems/spectrum-dashboard (last visited May 25, 2011); 2011); May 25, (last visited http://reboot.fcc.gov/reform/systems/spectrum-dashboard FCC Universal Licensing System Ex Parte Letter from06-119 and WC Dkt. No. 06- Verizon Wireless to FCC, EB Dkt. No. 2007). 63 (filed Sept. 4, Economics Approach to Spectrum Property Rights: A Response to Weiser and Hatfield to Weiser Response A Rights: Economics Approach to Spectrum Property 30555_cdt_9-2 Sheet No. 101 Side B 08/09/2011 09:04:54 B 08/09/2011 101 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 102 Side A 08/09/2011 09:04:54 PM PM
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this does 87 are more cumbersome whereindividual the 529 , need to be renegotiated when the the be renegotiated when need to when we seek to extend RF first : EVOLUTION Wireless carriers’ thousands of Commission rules also permit Commission rules l regulatory clarity in order to R 86 85 be difficult and carriers (including ADIO all negotiations are symmetrical or R e considered a major modification to the license e to the considered a major modification Moreover, these agreements note 64, at 589. note 64, at 589. NFINISHED NFINISHED U
supra HE , agreements in that they often agreements in that they Instead, we manage the market the process in and
6/21/2011 ELETE D . Spectrum Policy Reform Policy . Spectrum Clear, Enforceable, Negotiable Rights - FCC Rules Allow for Private Agreements Under current rules, licensees negotiate to extend rights into each Unlike most radio services,Unlike most radio the rules governing wireless mobile OT 87 N O M K licenses and thousands of miles of adjacent and co-channel boundaries whether this successfulcreate a laboratory for evaluating approach to interference “rights” negotiations is pertinent to a larger radio operating rights framework. others’ licensed spectrum on a daily basis. These are not massive, one- individualbetween hundreds of involve companies,time negotiations but negotiations between companies’ engineers who are tasked with the day- to-day operations of the network. And, although mobile wireless licensees are, for the most part, “stable and ‘repeat players,’” licensee changes technology. licensee changes technology. than the PCS field strength field than the PCS and thus must be approved by the FCC. approved by the must be and thus strength agreements. 47 MHz spectrum licenses, also permit these kinds of field 1 and 700 85. AWS both cover 27 rules, which Part The Commission’s (1994). § 24.236 47 C.F.R. 27.55(a)(2008). C.F.R. § licensee’s coverage ar boundaries of a cellular 86. new cellular agreementsthat extend the PCS, Unlike (2003). § 22.912 47 C.F.R. the limited wireless of the details to consider paper this short scope of and experience rights carriers’ with interference management. Two areas radio discussion of however, why any illustrate, rights operating can a betterbenefit from understanding of licensees’ approach market based and interferenceto rights management D 2011]T not mean interests are always aligned or that licenseesnot mean interests are always aligned always get what they want or need. Indeed, not mutual—in our case, we attempt reciprocity borders, but these negotiations can Verizon goals. That said, Wireless) do not always achieve their because the rights of there is no benefit to seeking both licensees are clear, regulatory redress. cellular licensees to negotiate service areacellular licensees to negotiate boundary extensions agreements with neighboring licensees. licensee has clear, enforceable rights and is permitted to negotiate is permitted to rights and has clear, enforceable licensee ofextensions second, these rights and has class of licensees where the enforceable rights, but needs additiona resolve interference issues. carriers permit private rights negotiations. Commission’s Under the PCS field higher agree to a parties can 700 MHz rules) AWS and rules (and strength than is outlined in the rules. C Y 30555_cdt_9-2 Sheet No. 102 Side A 08/09/2011 09:04:54 A 08/09/2011 102 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 102 Side B 08/09/2011 09:04:54 M K
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see also see 1:30
ence are smaller in ence are smaller in 89 . [Vol. 9 [Vol.. Wireless Telecommunications Bureau Bureau Telecommunications Wireless mitter to address the problem. mitter to address ources costs carriers thousands of of Signal Boosters and Other Signal Amplifications Amplifications Signal Other Boosters and of Signal of booster interfer WT Dkt. No. 10-4; DA 10-14 (Jan. 6, 2010); 2010); (Jan. 6, 10-14 DA No. 10-4; WT Dkt. ted RF environment. theoretical framework to define radio operating J. L ON TECH. HIGH & TELECOMM.
right
Wireless Services, 6/21/2011 CommentsCommentsand of CTIA Reply in Although most instances Although most instances ELETE 88 D . See Unauthorized for Interference—Need Operator-to-Licensee Additional Final Thought Enforcement Assistance Enforcement
Getting the Licensees alsoLicensees with deal thousands of instances of interference from OT 89 N O Comments and Reply Comments of Verizon Wireless. Specifically, Verizon Wireless has Reply Comments of Verizon Wireless. Comments and a boosters cannot be operated without signal that (l) confirm asked that the Commission license or licensee approval, and (2) declare that signal boosters cannot be sold to entities not them. operate authorized to Techniques Used with Techniques harmful interference to of and serious cause are a growing wireless carrier’s authorization 88. a used without that are marketed and or amplifiers signal boosters, repeaters Radio wireless networks. Use the Regarding Petitions on Comment Seeks look to other ways to gain the rights to spectrum we spectrum rights to gain the ways to to other look to operate— need typically purchase spectrum through lease. or D 530 hours to investigate and, where possible,hours to investigate and, where to resolve. In the case of individualboosters licensees are not seeking relief, but are asking the stance on the strong and take a rights licenseeCommission to confirm that licensees can address thesemarketing of these devices, so interference issues more forcefully in the marketplace. scale, they still can be difficultscale, they still can be nearly to resolve—the source may impossible to inidentify if installed a moving vehicle or boat for example. Interference from these and other s rights is important, but the exercise must be informed by the experience licensees have gained resolving interference issues in an increasingly complex and market-orien unauthorized each year. operations licensees’ efforts to resolve Again, involve the FCC. If much local and generally do not these issues are very we can locate the source of harmful interference, we can often work with propertythe owner of the or trans such as in 2006 may require FCC intervention, However, some cases when a signal booster installed in a Manhattan office building interfered York and NewVerizon Wireless cell sites in New with about 200 Jersey. 30555_cdt_9-2 Sheet No. 102 Side B 08/09/2011 09:04:54 B 08/09/2011 102 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 103 Side A 08/09/2011 09:04:54 NUSP- ...... 533 ...... 559 HOULD BE
S * EGULATE R OKUTCH Regulate ...... 552 Regulate ...... been possible. Thank you. been possible. Thank you. EVELOPMENT W
D ? ...... 544 V.
531 NTERACTIONS ...... 545 I S. RID G UTHORITY TO A ...... 559 ...... MART NDREAS S ONSUMER ...... 535 ...... 538 ...... A NTERACTIONS ...... 534 I REGULATE THEM? THEM? REGULATE undboards in my search for the topic of this Note. Lastly, this Note is Lastly, this Note. of this topic for the in my search undboards , this Note would, this Note not have ...... 532 NTITY HAS The FERC ...... 559 ...... The FERC The FCC Cyber Security Concerns ...... 538 ...... Cyber Security Concerns 543 Privacy Concerns ...... The DOE—No Authority to Regulate ...... 555 ...... The DOE—No Authority to Regulate 557 .... The FCC—Perhaps Able But Unlikely to Regulate 558 ...... The DHS—No Authority to Regulate PUCs—No Authority to The FERC—Partial and Inadequate Regulatory Authority ...... 545 E NUSP-C Only PUCs or the FTC’s State Analogues Have Authority to Only PUCs or the FTC’s State Analogues Regulate NUSP-Consumer Privacy Concerns 1. 2. Cyber Security of NUSP-Consumer and Privacy Concerns Interactions 1. 2. 3. 4. 5. 2. No Entity has Authority to Regulate NUSP-Consumer Cyber Security Concerns 1. What are NUSPsDo They Interact and How with Consumers? PROVIDERS IN SMART GRID GRID IN SMART PROVIDERS HY HAT VERVIEW OF ONSUMER EGULATED J.D., University of Colorado Law School (2011) and Associate Editor, University of of University and Associate Editor, School (2011) Law of Colorado J.D., University * W B. B. C W R O A. A.
DEVELOPMENT: SHOULD THEY BE THEY BE SHOULD DEVELOPMENT: REGULATED, AND IF SO, WHO CAN WHO CAN IF SO, AND REGULATED, THE ROLE OF NON-UTILITY SERVICE SERVICE NON-UTILITY OF ROLE THE
NTRODUCTION M K III. I. II.
Colorado Law Review. I am grateful for the helpful comments of Professor Paul Ohm, Colorado Law Review. I am grateful for the helpful comments of Professor Paul Ohm, Note. I benefited this and the editorial board of the JTHTL, which Professor Brad Bernthal, and David Mark Walker, Quinn, Eli Boyd, Professor William to thank also like would so Mohler for serving as dedicated to Rich, Mary Ellen, Caitlin, and Seema. Without your support and encouragement years over the past three I C Y 30555_cdt_9-2 Sheet No. 103 Side A 08/09/2011 09:04:54 A 08/09/2011 103 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 103 Side B 08/09/2011 09:04:54 M K
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T
, 5:21
NERGY E NERGY E YSTEM OF THE OF THE YSTEM S T OF ONSUMER ONSUMER ’ (Dec. 2009). (Dec. 2009). T OF T OF Additionally, the ’ 4 EP 5-1 (2004) (stating that 5-1 (2004) (stating EP D
ELIVERY ELIVERY vestment and Recovery Act ofvestment and D . [Vol. 9 [Vol.. tion of the grid to be a e grid in myriad ways. nology, more commonly , D , U.S. NUSP-C ENEFITS ONSULTING N ’ B C
OWER & P
. ., of the electrical grid as “smart grid of the Ideal ...... 565 Ideal ...... OMMC ES Ideal ...... 566 R C t Ideal ...... 562 ...... t Ideal This interest is evidenced by the NST 2 I
ntinues to flow toward this end. The OSTS AND OSTS EGULATE EGULATE
C R RYME ZP
TRATEGIC TRATEGIC 2 (2008). ESEARCH ESEARCH , , Oct. 10, 2009, at 71 (citing a prediction by Morgan S ...... 562 R available by the American Rein HOULD HOULD S J. L ON TECH. HIGH & TELECOMM. STIMATE OF STIMATE ITOS ITOS ? ...... ? ...... 562 via modern digital tech This tremendous public and private investment in This tremendous public and private E L sform and modernize th 1 6 OWER OWER and has allocated $3.4 billion in grants to smart grid 5 P ...... 569
CONOMIST .
NTITY NTITY and possibly to $100 billion by 2030. , E NTRODUCTION E 3 LEC I FCC Regulation Is Not Ideal ...... 566 ...... FCC Regulation Is Not Ideal DHS Regulation Is Not DOE Regulation IsDOE Regulation Not FERC Regulation Is Optimal ...... 567 FERC Regulation Is Optimal ...... The FTC, Its State Analogues, & PUCs ...... 560 FTC,The ...... Its State Analogues, & PUCs PUC Regulation IsPUC Regulation No ...... 571 E N See generally A 8/1/2011
3. 4. 2. 5. The FERC Should Regulate NUSP-ConsumerThe FERC Should Privacy Concerns 3. The FERC Should Regulate NUSP-Consumer Should Regulate The FERC Cyber Security Concerns 1. RELIMINARY : P
HICH HICH RID A Smart Grid Investment GrantAwards NTERACTIONS see also ELETE
: B. I W A. G D . Wiser Wires . Wiser . . Grid on the Smart to Capitalize Prepare Should Companies Software and Hardware U.S. Enormous commercial interest surrounds the idea of modernizing 4 3 OT N ONCLUSION O UTURE MART MART NTRODUCTION C I
in the U.S. and in International Markets, S F 2011). (last visited Feb. 11, http://www.oe.energy.gov/recovery/1249.htm 1. Referred to interchangeablyNote as “electric grid” or “grid.” in this This paper will refer to modernization 2. development.” D 532 2009. development projects. the U.S. electric grid IV. investment in the smart grid is likely to reach $165 billion by 2024). by 2024). billion likely to reach $165 smart grid is investment in the 5. (2010). § 17831 42 U.S.C.A. § 1301, of 2007 Act and Security Energy Independence 6. These funds were made However, these avenues of modernization significantlyHowever, these avenues of modernization complicate the regulation of the electric grid by blurring jurisdictional boundaries that and quickly less able to are lack clarity. As a result, regulators already with smart gridadequately address issues that arise development. This the smart grid has led to the development of many products and services that promise to tran Stanley); known as creating the “smart grid.” smart grid from $20 billion in 2009, to $42 market is estimated to grow billion in 2014, staggering amount of capital that co federal government has declared the moderniza priority for the U.S. 30555_cdt_9-2 Sheet No. 103 Side B 08/09/2011 09:04:54 B 08/09/2011 103 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 104 Side A 08/09/2011 09:04:54 , N ’ PM
1:40
OMM ON THE ON THE C 533 NIST
. EG ose technologies that it that it ose technologies EVELOPMENT R D
EPORT TO EPORT R RID RID
., G 6 (2009) (defining the smart the (defining (2009) 6 wide differences between NST I MART the operation of appliances S a given generalization. However, this However, a given generalization. OADMAP NERGY security and privacy concerns security and privacy of R E none do. Lastly, Part IV analyzes EVELOPMENT d business models currently in use or in d business ESEARCH ESEARCH D R ROVIDERS IN IN ROVIDERS P by interacting directly with consumers,
new and developing smart grid products . RID concerns. Accordingly, Note analyzes this Additionally, these products and services ED TANDARDS TANDARDS OWER G ERVICE S 8,9 is Note’s findings in relationNote’s is to th P S
. Although there are 7 LEC TILITY TILITY MART -U , E , F S ON N OLLEN D notes 1-2. notes 1-2. OLE OF OF OLE NTEROPERABILITY R I ON 6/21/2011 HE V RID VERVIEW OF ELETE ON G D D . See supra . See . Smart Smart . Grid As stated above, the ideaof modernizing U.S. the electric grid via 7 8 OT N O MART MART M K commonly seek to accomplish one or more recognized goals of smart grid out by the Energydevelopment. These goals were laid Independence and Security Act of 2007 (“EISA”)the use of digital and include: (1) to improve reliability, security, and information and controls technology efficiency of the electric grid, (2) integration of distributed resources and electric generation, including renewable resources, (3) deployment of “smart” digital technologies that optimize and consumer devices through real-time monitoring, automation, and S NUSPs developing the smart grid and determines that these concerns are substantialenough to require to regulate explores which entities have authority regulation. Part III and determinesthese interactions that which entity authority should be given to regulate NUSP-consumer interactions,concludesthat the most and appropriatesolutionis to Energyextend the Federal Regulatory Commission’s (“FERC”) current jurisdictional authority. I. O Note analyzesNote to authority clear jurisdictional lack of issue: the such one and non-utility consumers between direct interactions the regulate grid that offer smart companies products (“non-utility and services service providers” is authority This lack of regulatory or “NUSPs”). because inadequatesignificant oversight of these interactions raises substantial security and privacy giving a brief in Part I by this issue smart grid of what overview development entails. Part II the explains D 2011]T the seemingly endless number of and services that purport to further this end, each generally involves the and services that purport to further application gridof digital technology to the to enable real-time electric data. coordination of
modern digital technology is referred to as creating the “smart grid”or “smart grid development.” grid as the “two-way flow of electricity and information to create an automated, widely widely automated, create an to grid as the “two-way flow of electricity and information distributed energy delivery network”). such a wide range of services, products, an 9. smart grid technologies as a group because there is It is very difficult to speak about some technology falls outside development. Invariably th not reduce the value of fact should does encompass. does encompass. http://www.ferc.gov/industries/electric/indus-act/smart-grid.asp (last updated Feb. 2, 2011); 2011); Feb. 2, updated (last http://www.ferc.gov/industries/electric/indus-act/smart-grid.asp also see C Y 30555_cdt_9-2 Sheet No. 104 Side A 08/09/2011 09:04:54 A 08/09/2011 104 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 104 Side B 08/09/2011 09:04:54 M K
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NC I YBER YBER RAFT 1:40 C NERGY D
Products ORKING ORKING E ESPONSE ESPONSE
W R
& 11 RID RID
. 14 , G EC S EMAND These concerns NFRASTRUCTURE NERGY MART ELIVERY I D S 15 D YBER YBER
. C
– HOULD BE LEC While these goals add goals add these While S E . [Vol. 9 [Vol.. , E 10 ETERING ETERING ANEL M P Smart Metering and Privacy: Existing Existing Privacy: and Metering Smart SSESSMENT OF SSESSMENT UIDELINES FOR UIDELINES FOR FFICE OF FFICE OF note 2, at 11 (describing two-way digital note 2, at 11 (describing two-way digital A and provides for daily or moreand provides for
G ,
111-12 (2010) [hereinafter NISTIR [hereinafter (2010) 111-12 N .,
’ 8, supra supra DVANCED , A ECH
OMM N NTERACTIONS , T ’ I
C & NTEROPERABILITY Like most methods of modernizing the grid, Like most methods OMMC NERGY I 12 E C What Is TED? EQUIREMENTS EQUIREMENTS J. L ON TECH. HIGH & TELECOMM. vi n.2 (2008). n.2 (2008). vi RID R G 9-11 (Working Paper Series, 2009). Series, 2009). Paper 9-11 (Working ONSUMER EGULATORY EGULATORY TANDARDS TANDARDS T OF ’ R S
, EP TRATEGIC D ETERING Investigation of Sec. & Privacy Concerns Regarding the Deployment of of the Deployment Regarding of Sec. & Privacy Concerns Investigation OF MART MART S
. Order Opening Docket, Establishing Procedures & Dates, & Seeking Comments Comments Dates, & Seeking & Procedures Docket, Establishing Opening Order M Part II. Part II. , S NERGY NERGY U.S. NST E 6/21/2011 NUSP-C I , Colo. PUC Dkt. No. 09I-593EG, 2009 WL 2751604, at 2 ¶ 5 (Aug. 12, 12, (Aug. 5 at 2 ¶ 2009 WL 2751604, Dkt. No. 09I-593EG, PUC Colo. , ITOS
, . see also TRATEGY AND TRATEGY While both utility and non-utility While both utility products and services will L L ’ S , http://www.alertme.com/products (last visited Feb. 11, 2011). 13 ED HY E ELETE EGULATED AT D M . See infra . See See, . e.g. . See . See, See, . e.g. DVANCED R N Commentators note that there are many cyber security and privacy AMI is a meteringAMI is system that almostexclusively uses digital
2010]; 2010]; A OT
14 15 11 13 ., . N RP LERT ELIABILITY O EB ECURITY ECURITY Smart Grid Tech., & Information Quinn, Elias Leake Investigation]; 2009) [hereinafter Laws and Competing Policies
AMI has many applications. However,AMI has many applications. two applications have emerged as the predominant first, foci: using advanced metering devices at the distribution level to create better between communication electric second, supplying residential consumers, and utilities and (usually) advanced metering products and services directly by to consumers NUSPs. http://www.theenergydetective.com/what/overview.html (last visited Feb. 11, 2011); (last http://www.theenergydetective.com/what/overview.html some commonality betweensome commonality different grid smart and services, products the development of an advanced metering (“AMI”) infrastructure is considered the keystone to achieving the goals of the smart grid. AND G S F 10. (2010). § 17385 42 U.S.C.A. § 1305, of 2007 Act and Security Energy Independence R F (2008). 12. user interaction capabilities, and (4) provisionand (4) capabilities, interaction user electrictimely of consumers. to options control and information D 534
communication as a key function of the smart grid, which is made possible by AMI’s ability to AMI’s by made possible which is grid, communication as a key function of the smart O to reach consumers); allow electricity price-signals likely have a role in the development of the smart grid, non-utility likely have a role in the development services may create some particularly difficult regulatory issues. Because it is unclear that any entity can effectively and comprehensively regulate interactions between consumers and NUSPs, leading to security and privacy concerns, this thesecond category is focus of this Note. II. W concerns related to the development of the smart grid. A technology to recordtechnology consumption “customer (and possibly other parameters) hourly or more frequently of measurementsfrequent transmittal over a communication network to point.”a central collection 30555_cdt_9-2 Sheet No. 104 Side B 08/09/2011 09:04:54 B 08/09/2011 104 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 105 Side A 08/09/2011 09:04:54 , PM
N OF N OF 16 ’ 1:40
OMM 535 C because these
note 15, at B- . Flow of Energy of Flow TIL supra U
. EVELOPMENT UB D Quinn, Quinn, RID RID vices to consumers. see see G from consumers MART The two main examples of S 17 on. However, clear that it is not via many interfaces including onal privacyconcerns that emerge e regulation of NUSP-consumer of NUSP-consumer e regulation In effect, EEA provides consumers ROVIDERS IN IN ROVIDERS 20 P id products and ser id products ERVICE S and communications systems. P systems. and communications curity and law enforcement). curity and law d transferable in the system under study.” the system under d transferable in TILITY TILITY
-U 18,19 ON N that collect electric usage data directly data that collect electric usage 2 (2009). 2 (2009). OLE OF OF OLE R 6/21/2011 , http://cnx.org/content/m16468/1.3 (last modified Sept. 25, 2009). 25, 2009). Sept. modified (last , http://cnx.org/content/m16468/1.3 HE ELETE LOSSARY D A. What are NUSPs They Interact and How Do with Consumers? NUSPs interact directly with a consumer’s consumers by bypassing EEA is a non-utility consumers service that provides with an OT ., G N ONNEXIONS EX O M K electric utility and providing grid smart products and services (“non- utility services”) directly the consumers. to avoid NUSPs are able to the involvement of the consumer’s utilityrelying on the consumer by to provide otherwise would need to electric usage data that the NUSP obtain from the consumer’s electric utility. analysis of their electricity usage, and in turn allows consumers to identify and eliminate energy sinks. advanced metering devices, Web portals, software, and home area networks (“HANs”). non-utility services are electric efficiency analysis (“EEA”) and energy management, both of which are discussed below. These services are provided by NUSPs to consumers services are less likely to fall under state PUC jurisdiction as they are farthest removed from thejurisdiction as they are farthest services are less likely to fall under state PUC T regulatory framework surrounding them, it does not delve into the issue of how privacy details the Note explains the 16. While this and privacy related to NUSPs concerns and regulators. be treated by NUSPs should concerns focuses on NUSPs 17. electric usage data from electricSome NUSPs collect utilities. However, this Note have largelyhave been evaluated grid smart that presumption with the development be subject would to regulati regardingthis is true NUSP-consumer potentially making interactions, illustrates the magnitude This Part more significant. these concerns of inadequat associated with the risk by providinginteractions background on NUSPs information and the cyber security and privacy concerns created by their interactions with consumers. they provide what NUSPs are and how Section A explains smart grid services products and directly to consumers. Then, Section B describes the cyber security and pers smart gr when NUSPs provide D 2011]T with the informationthe inefficienciesand with necessary to correct electrical 19. For more information about other non-utility services, electric utility. meters, the advanced which includes system, metering device[s]” within an advanced 18. HANs are defined as the “network[s] between the advanced meter andhome the software and hardware, associated C 6 to -8 (noting that other uses of electric usage data include insurance premium calculation, uses of other that 6 to -8 (noting national se marketing research, and or not considere either lost that is 20. of energy quantity a significant that collects as “anything defined are Energy sinks C Y 30555_cdt_9-2 Sheet No. 105 Side A 08/09/2011 09:04:54 A 08/09/2011 105 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 105 Side B 08/09/2011 09:04:54 M K
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ENS ISCO L PRING PRING 1:40 S
OOGLE
. GILEWAVES respectively. NERGY NERGY ILVER E , G
, S , A fo/Help.aspx (under EE (Feb. 6, 2009), 6, 2009), (Feb. IZ dback.aspx (noting dback.aspx , B Products OME Products
H Web-based load management management Web-based load . [Vol. 9 [Vol.. see o have combined their Tivoli o To monitor electricity To monitor
note 13. gement services, CO 24 see , E , C see also supra of monitoring, controlling, and conserving conserving and controlling, of monitoring, same purpose as Web portal load management portal load management as Web same purpose PowerMeter enables consumers to 22 and Control4’s home controller as other non-utility non-utility as other home controller and Control4’s by allowing them “to their home’s view , http://www.google.org/powermeter (last visited Feb. Feb. http://www.google.org/powermeter (last visited , 23 note 21. Other notable note 21. Other notable Two examples of energy management, Two examples of energy management, , http://www.microsoft-hohm.com/In 28 ng Network’s Greenbox, supra Real Time Feedback Real Time IBM and Cisco Systems wh , OOGLE OHM J. L ON TECH. HIGH & TELECOMM. based on the consumer’s “specific household H 26 , G Alternatively, EEA can be performed without 25 are AlertMe.com, Ltd.’s AlertMe Energy (“AlertMe”) note 22. 29 text accompanying notes 33-34; notes 33-34; text accompanying ICROSOFT The What, Why, and How of Energy Management and How of The What, Why, Jeffrey Lee, 6/21/2011 supra
, M , , http://silverspringnetworks.com/products/index.html (last visited Feb. 11, (last visited http://silverspringnetworks.com/products/index.html , 27 ELETE D . Help . Google PowerMeter . Google . See . Google PowerMeter Frequently Asked Questions Google PowerMeter Frequently Asked . infra . See . Help . See Google PowerMeter Google See . The other main management, usually non-utility service, energy OT 22 21 29 24 25 27 23 N ETWORKS O energy . . . .” process is the “[E]nergy management 28. usage, the software receive electric must from usage data the consumer’s by could be accomplished home. This meter data from a smart receiving installed by a consumer’s electric utility. However, PowerMeter bypasses the utility by receiving is done by directly from the consumer. This data providing the to install in his consumer with a device or her home that can collect data. installing any sort of advanced meter. Microsoft’s Hohm accomplishes this by requiring a consumer to manually enter certain energy-related an onlineinformation onto provides software program, which in turn efficiency suggestions circumstances and use of appliances and including home attributes systems.” monitor theirmonitor usage electricity and Microsoft’sand Web portal a EEA through provide both which Hohm, using online software. interface 11, 2011). 11, 2011). http://www.ecohomemagazine.com/home-technology/real-time-fee Blueline Innovations’ PowerCost Monitor Monitor PowerCost Blueline Innovations’ among others, N lower electric bills. Two examples of EEA are Google’s PowerMeter Google’s are of EEA examples bills. Two electric lower D 536 products/services are Silver Spri “Frequently Asked Questions” select “What is Hohm?”) (last visited Feb. 11, 2011). Feb. 11, 2011). Hohm?”) (last visited select “What is Questions” “Frequently Asked http://www.energylens.com/articles/energy-management (last visited Feb. 11, 2011) (last visited http://www.energylens.com/articles/energy-management http://www.agilewaves.com/products (last visited Feb. 11, 2011). Feb. 11, 2011). http://www.agilewaves.com/products (last visited 2011). (last visited Feb. 11, http://www.google.org/powermeter/faqs.html visited (last http://www.cisco.com/en/US/solutions/ns726/intro_content_energywise.html Feb. 11, 2011). includes EEA as part of the service, but takes EEA a step further by also providing a management system for a consumer to control electric usage throughout the residence. energy consumption from online.” anywhere 2011), and Agilewaves’ Resource Monitor, Agilewaves’ Resource Monitor, and 2011), services except that the software is not located online. Notable companies providing this type providing companies online. Notable not located services except that the software is include of load management 26. serves the Software load management software and EnergyWise company-wide energy mana EnergyWise company-wide software and EnergyWise Technology 30555_cdt_9-2 Sheet No. 105 Side B 08/09/2011 09:04:54 B 08/09/2011 105 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 106 Side A 08/09/2011 09:04:54
, , , 32 35 M PM
O 1:40 IGA
ONNELL , GigaOM ETECTIVE , G D 537 C D M HANs are 37 Both of these these of Both Both AlertMe Both 34 30
EVELOPMENT
How Apple Could Jolt the How Apple Could D & NERGY 36 E RID RID G Through this portal, 38 note 18. note HE MART S After collecting this data, T URNS URNS 31 supra , OM (Jan. 17, 2010, 5:19 PM), PM), 2010, 5:19 OM (Jan. 17, Katie Fehrenbacher, Katie note 13. ROVIDERS IN IN ROVIDERS P , B IGA LOSSARY supra , see also see , http://www.alertme.com/help/getting-started (last , http://www.alertme.com/help/getting-started (last ., G E ERVICE S , G , http://www.alertme.com/products/energy/how-it-works , http://www.alertme.com/products/energy/how-it-works EX M E and communications systems. T note 13. M TILITY TILITY How Google’s PowerMeter Will Affect the Smart Grid Industry Smart the Affect Will How Google’s PowerMeter Google’s PowerMeter Links with AlertMe, UK Utility AlertMe, with Links PowerMeter Google’s LERT N OF N OF -U ’ A What Is Ted? What Is supra LERT , ON A N
OMM
Intel Developing Home Energy Management Concept Gadget Home Energy Management Concept Intel Developing C
. OLE OF OF OLE R TIL 6/21/2011 U
HE .
AlertMe operates differently, requiring AlertMe operates attachment of hardware UB (Feb. 11, 2009, 12:00 AM), http://earth2tech.com/2009/02/11/how-googles- AM), 12:00 11, 2009, (Feb. ELETE 33 M D . How It Works, It . How . Is TED? See What . Getting Started, . How Do I Install TED?, Do I Install How . . Id. . Home Area Networks . Lastly, energy management provided is also a broad category of by O OT 31 30 34 33 32 38 N IGA O M K
35. Katie Fehrenbacher, Katie 35. visited Feb. 11, 2011). AlertMe, lesser and to a extent T.E.D.,improvehelps consumers electric by allowing themefficiency control energy to better in their home. use http://earth2tech.com/2010/01/17/how-apple-could-jolt-the-smart-home-energy-market; http://earth2tech.com/2010/01/17/how-apple-could-jolt-the-smart-home-energy-market; Katie Fehrenbacher, (Sept. 24, 2009, 1:01 PM), http://earth2tech.com/2009/09/24/intel-developing-home-energy- (Sept. 24, 2009, 1:01 management-concept-gadget. Installation of T.E.D. requiresInstallation connecting hardware to the residence’s circuit breakersdisplay and then plugging an LCD an electric into socket. whereby their devices provide consumers with energy management service and Google’sthe EEA. PowerMeter provides G onto the actual electric meteronto the actual andsetting hub that up a broadband and transmits it over the Internet. collects usage data 36. Katie Fehrenbacher, Fehrenbacher, http://earth2tech.com/2009/10/28/googles-powermeter-links- 7:29 AM), (Oct. 28, 2009, Katie with-alertme-uk-utilility. 36. 37. P powermeter-will-affect-the-smart-meter-industry. 37. energy management service providers); energy management Smart Home Energy Market and Energy,and (“T.E.D.”).DetectiveInc.’s The Energy D 2011]T and T.E.D. and provide EEAto consumers the through installation of an meteringadvanced devicewhich collects home, in a consumer’s electricity data for usage the residence. http://www.burnsmcd.com/portal/page/portal/Internet/Service/Electrical_Transmission_and_ 11, 2011). (last visited Feb. Distribution1/SmartGrid/Home%20Area%20Network http://www.theenergydetective.com/what/install.html (last visited Feb. 11, 2011). 11, 2011). (last visited Feb. http://www.theenergydetective.com/what/install.html essentially networks within a consumer’s home that connect home appliances with heating, cooling, and lighting systems via an interface such as a website, software, or hardware. (last visited Feb. 11, 2011); 11, 2011); (last visited Feb.
products bypass the electric utility. Additionally, both companies supplying thesein a partnership with Google, products have joined
products referredto as HANs. HANs are networks that come in many forms; one formal definition describes them as the “network[s] between the advanced meter and the home within an advanced device[s]” metering system, which includes advanced meters, the associated hardware, and software C Y 30555_cdt_9-2 Sheet No. 106 Side A 08/09/2011 09:04:54 A 08/09/2011 106 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 106 Side B 08/09/2011 09:04:54 M K
, 43 C Y
PM
46 YBER YBER 1:40 ECURE ECURE C
S LECTRIC E ICTIONARY ICTIONARY ICTIONARY Examples Examples
39 & ., D ., D EF EF Although this RIME AND AS AS D D Broadly, cyber 41 C G 44 TRATEGY TO TRATEGY OF . S T OF ’ T ’ YBER YBER More formally, cyber This Section outlines EP IEGO IEGO EP 45 42 . [Vol. 9 [Vol.. D Development and Use Under Use and Development D ., C HANs, like other energy HANs, 40 See See AN ATIONAL ATIONAL N , S (Mar. 4, 2009, 7:41 PM), 7:41 4, 2009, (Mar. tion abouttion the energy total use of HE note 15, at 9-10. ., T ROBLEM 141 (2001)). 141 (2001)). EC 92 (2010). 92 (2010). P CHAEFFER ET AL CHAEFFER S supra
note 15. S information technology infrastructures”
S. ERMS ERMS ERMS supra T CyberWarfare Operations: 2010, . 121, 125 (2009) (quoting D (quoting . 121, 125 (2009) ncerns for consumers. T
. EV EB R J. L ON TECH. HIGH & TELECOMM. RUCE
F OMELAND OMELAND B L. H
NOWLEDGE NOWLEDGE Intelligent End-Use Devices Make a Transactive Smart Grid Valuable Valuable Grid Smart Transactive a Make End-Use Devices Intelligent make this to changes use in various ways. RAFT RAFT SSOCIATED SSOCIATED SSOCIATED SSOCIATED D Investigation,
A , K see also also see A T OF T OF ’ , 64 A.F. EP 6/21/2011 D iii (2003). 1. Cyber Security Concerns Interactions
at 10; at 10; NISTIR
ELETE D . See . Id. . Id. . Smart Meters and Home Area Networks Area Home and Meters Smart . . See generally generally . See B. Security Cyber and Privacy Concerns of NUSP-Consumer Understanding requires cyber security concerns a basic While the smart gridWhile the smart promises to increase the efficiency and ILITARY AND ILITARY AND OT 45 39 46 41 42 M M N YBERSPACE YBERSPACE O understanding of prevailing terminology. Cyberspace is defined as anunderstanding of prevailing terminology. “interdependent network of the scope ofthese concernsmay be each of and highlights how they exacerbated by NUSP-consumer interactions. reliability of the electric grid, it may also increase cyber security concerns for the grid and privacy co security is the protection of these infrastructures. meter can be installed by a utility meter can be installed NUSP, onlyor a HANs that utilize electricusage data gathered from the consumer without involving the consumer’s electric utility Note. are relevant to this including networks, computer “the Internet, telecommunications systems, and embedded processors controllers.” and OF management services,management rely on obtaining data from electric usage some meter sort of advanced installed). (utility or non-utility
40. Lynne Kiesling, Kiesling, Lynne 40. (Part 3 of 5) C
consumers obtain can real-time informa D 538 hometheir and can include automating energyinclude automating that energy use so during will only be used theperiods of day with theprices, lowest appliances, programming and heating,cooling, and distributed generation systems (e.g. solar panel as possible. to operate as efficiently displays) OF
security is “the protection integrity, required to ensure confidentiality, and availability of the electronic information communication system.” http://knowledgeproblem.com/2009/03/04/intelligent-end-use-devices-make-a-transactive- smart-grid-valuable-part-3-of-5. International Law Arie J. Schaap, Major 44. http://www.sdge.com/smartmeter/homeAreaNetwork.shtml (last visited Feb. 11, 2011). 43. U.S. 43. 30555_cdt_9-2 Sheet No. 106 Side B 08/09/2011 09:04:54 B 08/09/2011 106 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 107 Side A 08/09/2011 09:04:54 PM
1:40
1 (2009) 1 (2009) As one 539 52 THERS O e Nation’s electricity “[t]he need to address “[t]he EVELOPMENT D AND Cong. 7 (2009) (prepared (prepared 7 (2009) Cong. ,
The NIST proposes The NIST RID RID note 15, at 8-9 (citing one of note 15, at 8-9 G 47 n’s critical infrastructures, , 111th supra MART
relation to the smart grid torelation to S ICENSORS L
, note 43, at viii. note 43, at viii. 2010,
. EB supra
Grid, and noting that Grid, and F clude “modernization of th “modernization clude note 15, at 10. ., ROVIDERS IN IN ROVIDERS P In turn, cyber security emerged as a EC S 51 Federal Energy Regulatory Commission). Federal Energy Regulatory supra RAFT
RANCHISORS D
ERVICE F S 2010,
. EB government agencies). TILITY TILITY OMELAND OMELAND F NISTIR
-U H ON APER FOR FOR APER P N RAFT RAFT These standards are recognized These standards as critical to the T OF T OF ’ D see also see
49
EP The NIST’sdesire to develop definition a more precise of 50 HITE OLE OF OF OLE D
48 R Ironically, smart grid because the seeks to increase the W at 10, 12. at 10, 12. 6/21/2011
HE 53 at 8 (noting that need the address to security cyber vulnerabilities has been U.S. NISTIR A
. . at xiii, 6; : ELETE D . See . Id. . See . See id. . See . Id . Grid on Smart Progress the to Examine Hearing Technologies: and Initiatives Grid Smart . Id Recently, theInstitute National of and TechnologyScience The federal government officially recognized the need for strong OT 51 50 47 49 48 53 52 N O ECURITY M K acknowledged by many federal acknowledged by
expanding the definition of cyber security the definition of expanding in include “both technologies and cyber system power in and processes technology][information power system and and operations governance.” (citing another definition of cyber security as “the protection of any computer system, software protection of any computer system, software security as “the of cyber definition (citing another or destruction, and data against unauthorized use, disclosure, transfer, modification, program, or intentional”). whether accidental FERC commissioner stated, “[t]he significant benefits of Smart GridFERC commissioner stated, “[t]he taking reliabilitytechnologies must be achieved without and security risks that could be exploited to cause great harm to our Nation’s citizens and economy.” protection of the U.S. economy, which depends on the proper which depends U.S. economy, protection of the informationfunctioning of the technology (“IT”) infrastructure and power system. concern with the development of the smart grid because the smart grid to achieve itsrelies heavily on software and networks goals, which, if not adequately protected, can provide cyber criminals with a way to attack the electric grid and impact its overall safety and reliability. S D 2011]T
cyber security is part of its development for of cyber security standards the smart grid. efficiency of the electric gridmodern technology through the use of (such (“NIST”) definition inclusive a more called for has of cyber security in relationthe development to smart grid. of the statement of Suedeen G. Kelly, Comm’r, Initiatives Authorized in the Energy Independence and Security Act of 2007, and Funded in the and Funded 2007, of Act and Security Independence Energy the in Authorized Initiatives StimulusBill, and to Learn of Opportunities and Impediments to Timely Installation ofSmart Grid TechnologiesComm. Before S. the Energy on Res. & Natural the EISA’s explicit statementspurpose to in of the federal government, including the acknowledged across been has potential vulnerabilities [NIST], the [DHS], the [DOE], and the [FERC]”). transmission and distribution system to maintain a reliable and secure electricity infrastructure” infrastructure” secure electricity and a reliable maintain to distribution system and transmission the development of the Smart in relation to cyber security standards in 2003, when such standards were deemed in 2003, when such standards cyber security standards necessaryto eliminate the of “organizedrisk of capable cyberattacks causing debilitating disruption to our Natio economy, or national security.” C Y 30555_cdt_9-2 Sheet No. 107 Side A 08/09/2011 09:04:54 A 08/09/2011 107 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 107 Side B 08/09/2011 09:04:54 M K
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54 rks are byrks are OADMAP FOR R . [Vol. 9 [Vol.. 1.0 7 (2010) (interpreting the (2010) (interpreting 7 1.0 RAMEWORK AND RAMEWORK F
These vulnerabilities are also note 54. software and netwo and software good examples of this as they because the non-utility services
ELEASE ELEASE
57 create cyber security risks such as create cyber security R supra NIST
., ., a function currently absent (i.e. the These standards currently target These standards currently the , and (5) by increasing the potential , and (5) by increasing the potential the consumer can tap into his or her note 15, at 1. 56 ECH ECH T T
supra
rconnecting networks, (3) by increasing
& & TANDARDS S 2010,
. EB J. L ON TECH. HIGH & TELECOMM. of cyber security. of cyber F TANDARDS TANDARDS TANDARDS TANDARDS S S RAFT RAFT OF D .
OF . NST NTEROPERABILITY I NST I I 6/21/2011 L ’ L ’ at 8. at 8. NISTIR AT RID AT ELETE G D N . See . Id. The EISA delegated responsibility to the NIST to develop the NIST to develop to delegated responsibility The EISA NUSP-consumer interactions should be consideredNUSP-consumer interactions should a cyber security OT 56 57 N O MART MART created by NUSP-consumer interactions. NIST has interpreted this authority to include cyber security standards, which the NIST is still developing. vulnerabilities to communicationvulnerabilities to and introduction of disruptions malicious that could result in denial of service software or compromising the integrity and systems, (4) by increasing of software the number of entry points and paths for attackers for compromise confidentiality. of data ways that smart grid development may development may ways that smart grid (1) by increasing the complexity of introducing the grid thereby and unintentional increasing exposure to attacks vulnerabilities and errors, (2) by increasingly inte
see also 54. (2010); § 17385 U.S.C.A. 42 § 1305, of 2007 Act Security and Independence Energy S their very nature prone very nature their cyber to grid smart attacks, developmentmay actually decreasethe security of the electric grid. underscores This the importance of prudent smart grid development that understands and adapts to the challenges “interoperability standards for the functionality” and grid. smart as software because and and networks), D 540
55. N to includeNIST’s EISA authority cyber security standards). 55. risk equal to other smart grid applications as other aspects of smart grid they provide share the same vulnerabilities development. Non-utility all of the smart grid services exhibit above as particularlydevelopment vulnerabilities identified problematic for assuring the safety of the grid. First, these interactions increase the complexity of the grid by adding an additional layer of functionality to the grid. For example, AlertMe layer of adds a new functionality to the grid by creating an interface where electric usage data to perform EEA. This new function complicates the current status of the grid by adding grid currently lacks activeconsumer participation of the beyond consuming electricity). Second, these interactions increase the interconnection HANs of networks. are create new networks within a consumer’s home to perform EEA, which is in turn connected to the Internet.services Third, many of these increase vulnerability to malicious software and the potential for service to utilize the Internet todisruption because they allow consumers 30555_cdt_9-2 Sheet No. 107 Side B 08/09/2011 09:04:54 B 08/09/2011 107 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 108 Side A 08/09/2011 09:04:54
, , 60 61 PM
YBER T OF T OF ’ 1:40 C
NERGY EP E D 541
T OF T OF ’ U.S. URRENT
EP C ., D
note 60, at 12 (citing (citing 60, at 12 note – 58 EVELOPMENT ECH D T supra , U.S.
The Department of , RID RID
& 59 G 65 YSTEMS YSTEMS S extracting data from the MART S RID ELIABILITY ELIABILITY G R achieved is by disruption of IT R TANDARDS TANDARDS S Vulnerabilities in Wireless Control Systems Control Systems in Wireless Vulnerabilities MART ROVIDERS IN IN ROVIDERS 32 (2010). (2010). 32 NERGY NERGY P S NERGY NERGY , power outages,grid instability.” and OF . E E
RID & & NST G I ERVICE S L ’ This study found that when these wireless MART AT 62 S TILITY TILITY ELIVERY N ELIVERY ELIVERY
D
-U D ,
Smart Security for a Smart Grid: New Threats on the Horizon Threats New Grid: Smart for a Security Smart
. . TTRIBUTES OF TTRIBUTES Once the device has been compromised, it can be ON (Sept. 28, 2009), (Sept. 28, EE note 15, at 9-11. note 15, at 9-11. A 64 N L LEC LEC E E COM supra AND THE AND THE . 2 (2009). OLE OF OF OLE R EWS 6/21/2011 NIST ECURITY ECURITY
N HE , S SSUES Quinn,
The study foundif theseThe study that deviceswere attacked, thegrid I FFICE OF FFICE OF FFICE OF NNABELLE RID 63 ELETE D G . See . Id. . Id. . Id. Exploitation security of poor cyber related to NUSP-consumer
OT 58 63 64 65 N OMMERCE O TUDY OF TUDY OF ECURITY MART M K 61. A 61. Energy (“DOE”) has explained these vulnerabilitiesthat could be exploitedpotential the grid, stating that there is to jeopardize for “extreme damage from a cyber electric attack” on the U.S. that could grid result in “destruction of generators AMI devices/networks (such as wireless non-utilityAMI devices/networks (such as wireless devices that provide EEA and HANs connected to them) are used by consumers outside of devices are highly vulnerable to cyberthe control of an electric utility, the attacks. More specifically, the DOE cited a 2009 study of AMI devices and More specifically, the DOE cited networks to exemplify how a NUSP-consumer interaction could result in such “extreme damage.” One way this level of damage could be One way this level equipment by EM Pulse, EMI, or Geomagnetically Induced Currents. Travis Goodspeed et al., Low-level Design et al., Low-level Travis Goodspeed Hardware (2009)). 59. Alex Yu Zheng, Zheng, Yu Alex 59. S S S C
perform EEA, which creates an additional access point for malicious for malicious point access additional an creates which EEA, perform points new access these Fourth, to exploit. software create additional also that potential entry points can attackers Finally, to harm the grid. exploit create a risk or AlertMe non-utility that such as PowerMeter services compromised will be data confidentiality additional because an party, the non-utility, electric collects usage data fromconsumers. D 2011]T http://www.smartgridnews.com/artman/publish/Technologies_Security_News/Smart- O Security-for-a-Smart-Grid-New-Threats-on-the-Horizon-1226.html. 60. used to attack other parts of the smart grid by communicatingused to attack other parts of the smart through a network, which can compromise control systems. 62. O 62. would be jeopardized by a cyber attacker memoryof a device and modifying the device’s memory to insert malicious software. interactions could resultinteractions could harm to in a varietythe grid in of ways. As the complexity of interconnection betweensmart grid technologies and the electricdependencies” grid increases, is created that makes the a “chain of vulnerable to cyber attacks. grid more and more C Y 30555_cdt_9-2 Sheet No. 108 Side A 08/09/2011 09:04:54 A 08/09/2011 108 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 108 Side B 08/09/2011 09:04:54 M K
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He OC
S 68 1:40 73
CONOMY E Thus, to A-19 (2009) (2009) A-19 74 TANDARDS TANDARDS IGITAL S D r of customers necessary to insure necessary to IGITAL OF . D
NST & I EQUIREMENTS EQUIREMENTS Reestablishing service UPPORT A L ’ . [Vol. 9 [Vol.. S R 71 AT of the H. Comm. on Homeland Sec Comm. on Homeland the H. of He explains that an attack 70 , N EE protocols as may be may as protocols NDUSTRIAL I L tion between electric the system to a large numbe Joseph McClelland, Director of the Director Joseph McClelland, judgment, the Commission shall institute a the Commission judgment, TRATEGY AND TRATEGY 66 S McClelland has stated McClelland that “a smarter “At any time after the Institute’s work has led to any time “At This loss of service can be extremely 67 NNABELLE NFRASTRUCTURE TO TO NFRASTRUCTURE 72 I 2009] (describing the cyber security objectives for these objectives for these cyber security 2009] (describing the
. A
. ersecurity, & Sci. & Tech. ersecurity, & Sci. ECURITY S LEC EPT ISTURBANCES TO TO ISTURBANCES J. L ON TECH. HIGH & TELECOMM. E S see also see (statement of Joseph McClelland, Director, Office of Electric Director, Office of McClelland, of Joseph (statement D
YBER YBER Additionally, McClelland out automated load singles C RAFT 69 D
OWER RID P Part III; G 6/21/2011 ES-3 (2001). (2001). ES-3 Securing the Modern Electric Grid from Physical and Cyber Attacks: Hearing Before the the Before Hearing Attacks: Cyber and Physical from Grid Modern Electric the Securing
at 52. at 52.
. . . . ONSORTIUM FOR FOR ONSORTIUM MART MART ELETE S OST OF OST OF D
. Id . Id . Id . Id . Id. . Id. . See . See See . infra C ., Employees have the FERC of thealso acknowledged cyber security As the DOE findings and McClelland’s statements illustrate, the As the DOE findings and McClelland’s OT 69 70 71 72 68 67 66 74 N OMPANIES HE ECH O C 73. concerns that develop due develop that concerns of chains to dependencies between thegrid and NUSP-consumerinteractions. electric grid is vulnerable to damaging cyber security attacks that As explained below, no interactions. originate from NUSP-consumer Office of ElectricOffice of Reliability at the specificallyFERC, has addressed the non-utility services.danger of interactions, but not going into detail for how they will be applied); Energy Independence and and will be applied); Energy Independence detail for how they into interactions, but not going for (Standards (2010) § 17385(d) U.S.C.A. 42 § 1305(d), 2007 of Security Act Interoperability in Federal Jurisdiction: the Commission’s in consensus sufficient and standards such adopt to rulemaking proceeding of electric power, transmission and and interoperability in interstate smart-grid functionality electricity markets.”). and wholesale regional grid would permitgrid would two-way communica numberand a large ofof controlled utilitylocated outside devices will introduce environments, which many potential access points.” could be greatly delayed if a subsequent attack was carried out on the advanced metersthemselves. costly—an estimated $164 billion per year—and shouldcostly—an estimated $164 billion per be avoided.
Subcomm. on Emerging Threats, Cyb Subcomm. on (2009) Cong. 51-52 111th Energy Regulatory Commission). Reliability, Federal C T
D 542 believes that these access points allow cyberbelieves that these attackers to harm the grid by the electriceither manipulating usagecollected by non-utility data devices or by manipulating the control systems that manage electricity supply and usage. on load management could be used to affect grid’s AMI, which could be used to the smart on load management could result in disconnection of service and subsequently harm the bulk power system. and subsequently harm the bulk power
management, one of the mainmanagement, one as a functions of non-utility services, particularly apt avenue the grid. for attacking avoid this potential harm, it is necessary to create regulatory authorityavoid this potential harm, it is necessary T [hereinafter NISTIR entity has authority to effectively regulate these interactions. 30555_cdt_9-2 Sheet No. 108 Side B 08/09/2011 09:04:54 B 08/09/2011 108 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 109 Side A 08/09/2011 09:04:54 , ., ., RS PM ’
TR C 1:40
Quinn, Quinn, . OMM C and (3) 543 NFO RGING THE 76 I
U . see also TIL U behavior patterns
RIVACY RIVACY EVELOPMENT P D
. ESOLUTION ESOLUTION RID RID R G
LEC , While each of these While each of Although the NARUC 77 RS ’ 82 , E MART commentators have voiced EGULATORY
S w smart metering accomplishes these these accomplishes metering smart w R 80 adopted a resolution “[u]rging OMM 81 C le to advertising companies), (2)
. note 74, at 8 (stating that there are “many at 8 (stating that note 74, the potential harm an individual Examples of such concerns include 78 TIL 75 ROVIDERS IN IN ROVIDERS N OF P U ’ supra
SS A ERVICE 2009,
S . L ’ AT EPT TILITY TILITY S EGULATORY away from their homes). away from their homes). -U R The Smart Grid and Privacy and Grid Smart The , N ON RAFT N D note 15, at 10 (describing the potential for burglary as a privacy concern privacy concern as a potential for burglary the note 15, at 10 (describing note 15, at 11. 15, at 11. note note 15, at A-1 to -9.
N OF N OF ’ SS note 15. note 15. OLE OF OF OLE note 60 and accompanying text. accompanying and note 60 A Accordingly, regulators and supra supra supra R 79 6/21/2011 L 2. Privacy Concerns 2. Privacy ’ HE NISTIR AT ELETE Quinn, Quinn, D . See . See supra . See . See supra . See . About NARUC While smart grid development may bring grid development While smart many positive benefits As early as 2000, the National Association of Regulatory Utility As early as 2000, the National Association see note 15, at 11; note 15, OT 75 78 80 81 N O M K the [a]doption of [g]eneral [p]rivacy[p]rinciples [f]or [s]tate [c]ommission [u]se in [c]onsidering the implications [p]rivacy of the [u]se of [u]tility [c]ustomer [i]nformation.” monitor consumer activities in the home. capabilities of the smart gridcapabilities of the be used could for beneficial they purposes, for malicious ones. Additionally,could also be used although it can be argued that the magnitude of harm that can result from such privacy violations is likely less severe in economic terms that can than the harm result from cyber security breaches, feats, 76. Quinn, Quinn, 2011). (last visited Feb. 11, http://epic.org/privacy/smartgrid/smartgrid.html 76. 77. ho For more technical information regarding due to an improveddue to abilityto receive electric usage and transmit information, increased individual of such information about transmission consumers creates privacy concerns.
over the cyberover security concernsfrom NUSP-consumer arise that interactions. D 2011]T concern that something must be done to protect consumer privacy in the context of smart grid services and products. supra significant privacy concerns and issues” regarding smart grid development); smart grid development); regarding issues” concerns and privacy significant 82. N 2011). (last visited Feb. 11, http://www.naruc.org/about.cfm 82. the use of electricity expose consumer usage data to (1) for commercial benefit (e.g. through sa identify and track consumers purposes, for law enforcement Commissioners (“NARUC”), whichUtility represents the Public Commissions (“PUC”) of all fifty states, consumer could experience through privacy violations is varied and personal. Not only could consumersexperience monetary harm or a violation also be physically harmed of their legal rights, but they could through criminalsmart grid’s acts made possible by the data surveillance capabilities.
79. Quinn, Quinn, 79. be used to electric usage data which could created by the smart grid’s ability to obtain detailed consumers are ascertain when
C Y 30555_cdt_9-2 Sheet No. 109 Side A 08/09/2011 09:04:54 A 08/09/2011 109 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 109 Side B 08/09/2011 09:04:54 M K
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U USTOMER USTOMER C N ’ cyber security concerns. OMM C TILITY NUSP- U privacy TATE TATE S SE OF SE OF . [Vol. 9 [Vol.. ions is also necessary. U context. Instead, privacy mer interactions because it EGULATE R ted gridwith smart development ? RINCIPLES FOR FOR RINCIPLES note 74, at 8. note 74, at 8. P supra
UTHORITY TO MPLICATIONS OF THE A I RIVACY 2009,
P . J. L ON TECH. HIGH & TELECOMM. NUSP-consumer interact EPT S NTERACTIONS RIVACY RIVACY I P ENERAL ENERAL RAFT NTITY HAS G D
Part III. Part III. E Such statements to protect affirm the need against privacy (2000). (2000). 6/21/2011 83 HAT ELETE ONSUMER D . See infra . See C Finally, while it is unclear that either the NARUC’s or the NIST’s Determining what government entity or entities have authority to OT 84 N DOPTION OF OF DOPTION THE ONSIDERING O NFORMATION concerns, and Section B explains why the state PUCs and the state analogues of the Federal Commission (“FTC”) Trade are the only entities with authority to regulate NUSP-consumer regulate the smart grid is complicated. This Part identifies theregulate the smart grid is complicated. government entities with regulatory authority over the development of the smart grid, explains the extent of each entity’s regulatory authority, and concludeshave authority that none of these entities to adequately regulate the cyber security concerns of NUSP-consumer and privacy no government entity currently has interactions. Section A explains why the authority to adequately regulate NUSP-consumer concerns may be exacerbated for NUSP-consu is less clear which government entity can regulate such This interactions. between a utility-consumer uncertainty stems from the legal distinction interaction and a NUSP-consumer interaction, the former clearly being latter is a more difficult inquiry. under PUC jurisdiction while the concerns related smart grid development to and evidence the current lack of such protections. statements contemplated NUSPs in smart grid the role of development, are not reducedprivacy concerns this in 83. NISTIR 83.
Regardless of this regulatory uncertainty, because privacy concerns related to smart grid development have been identified by regulatory authorities as serious concerns that need of to be addressed, regulation the privacy concerns of III. W A C I identified theidentified privacy issues associa state general, “in 2010 that in noted the NIST ago, ten years nearly or standards privacy policies lack formal currently utility commissions consistent“lackof a Grid” and that Smart related and to the standards, privacy policies, comprehensive procedures and supporting utility agencies, the states, government throughout companies, and entities that willsupporting Smart Grid management be involved with and information collection and use createsa privacy risk to be that needs addressed.” D 544 30555_cdt_9-2 Sheet No. 109 Side B 08/09/2011 09:04:54 B 08/09/2011 109 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 110 Side A 08/09/2011 09:04:54
: 88 PM
1:40
ARKETS M AND THE THE AND 545 , EVELOPMENT CONOMICS D LECTRICITY LECTRICITY E
. E ,
RID RID local distribution of Id G 87 ty to regulate the electric NERGY ractions. This Subsection MART E S
., diction is not broad enough to has become more difficult. This of Standards and Technologyof Standards and DHS”) has been delegated some included authority to regulate authority to included tween two entities who are not the ultimate ultimate not the entities who are tween two GAO-03-726R, FERC’s jurisdiction, as codified in jurisdiction, as codified FERC’s
85 2 (2003). 2 (2003). , ROVIDERS IN IN ROVIDERS P FFICE O ERVICE S OSSELMAN ET AL OSSELMAN ONSUMERS B C TILITY TILITY -U RED ON N CCOUNTING A of electricity in interstate and transmission commerce of Authority
. ROTECTING 86 P OLE OF OF OLE EN 590 (3d ed. 2010). (3d ed. 2010). 590 R 6/21/2011 G 1. The FERC—Partial and Inadequate Regulatory Security ConcernsSecurity HE
OLE IN OLE IN ELETE R D S A. has Authority Entity No Regulate to NUSP-Consumer Cyber While the FERC’s traditional and newly delegated regulatory While the FERC’s traditional and Authority to regulate theAuthority grid electric was traditionally divided OT N NVIRONMENT O M K electricityincluded The PUCs’ jurisdiction in interstate commerce. authority sales of electricity, to regulate retail 88. U.S. 88. 87. to an end user. as sales directly are defined “Retail sales” Federal legislation has since altereddual regulatory this framework. the of 2005”) and Policy Act of 2005 (“EPAct Specifically, the Energy the FERC’s regulatory EISA have increased authority and have extended regulatory authority entities such as the Department to additional of Energy (“DOE”),National the Electric Reliability Corporation National Institute(“NERC”), the (“NIST”),and the FederalCommunications Commission (“FCC”) (referred to collectively as “non-traditional entities”). Additionally, the Department Security of Homeland (“ jurisdiction over cyber Delegation security concerns. of regulatory authority to non-traditional entities has been problematic because it has blurred jurisdictional boundaries. Consequently, determining which entity has authority to regulate new developments in the electric industry, such as NUSP-consumer interactions, powers give it deal a great to regulate the of power electric grid, these powers do not include the authority to adequately regulate the cyber security aspects of NUSP-consumer inte Section analyzes the jurisdictional of each entity boundaries to in relation NUSP-consumer cyber security concerns and concludes that it is unlikely that the FERC, PUCs, or non-traditional entities have authority to adequately regulate them. authori outlines the development of the FERC’s grid and explains why its current juris users of the electricity. F 85. § 824 (2006). U.S.C. Federal Power Act § 201, 16 86. as one be are defined “Wholesale sales” E FERC’ D 2011]T electricity, the siting and of power plants and transmissionlines. between the FERC and PUCs. The the FERC and PUCs. between the FederalAct (“FPA”), Power wholesale saleswholesale C Y 30555_cdt_9-2 Sheet No. 110 Side A 08/09/2011 09:04:54 A 08/09/2011 110 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 110 Side B 08/09/2011 09:04:54 M K
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TATUS note 66. It It note 66. S NERGY NERGY E
The second supra &
91 , 107th Cong. 34 34 Cong. , 107th , , HearingBefore the AS ale sales in interstate ale sales in interstate
G
, IL O
URISDICTIONAL URISDICTIONAL out by Conn. Light & by Conn. Power out J J.
. [Vol. 9 [Vol.. S . Brief for Electrical Engineers, Brief for Electrical Engineers, EX g states. Thus, Texas has escaped escaped Texas has Thus, g states. nsmission lines run). tremendous pace on the wires of an tremendous relates to the development of , 3 T Additionally, the FERC’s 93 expanded for two reasons: (1) see generally ansmission lines of another state due to the to the due another state of lines ansmission PPRAISAL A cyber security concerns. The FERC’s concerns. The cyber security rstate wholesale sales and transmission of rstate wholesale sales all locations where tra to those of surroundin to those in interstate commerce as laid in interstate commerce Jared M. Fleisher, ERCOT’ Jared M. J. L ON TECH. HIGH & TELECOMM. smission of electricity is now deemed to be smission of electricity is now deemed rstate commerce. ricity transmission); terpretation that its jurisdiction over wholes terpretation that its jurisdiction note 91, at 9 (describing how Texas, Alaska, and Hawaii are and the Hawaii Alaska, Texas, how note 9 (describing at 91, See also See ONTEMPORARY ONTEMPORARY C if that state’s grid connects to another state’s grid. supra in interstate commerce”). note 89. note 89. The first reason for expansion The first reason 6/21/2011 89 Fleisher, Securing the Modern Electric Grid from Physical and Cyber Attacks Grid from Physical Modern Electric the Securing interstate
Fed. Power Comm’n v. Fla. Power & Light Co., 404 U.S. 453, 463 (1972) (1972) 463 453, U.S. Co., 404 Power & Light Fla. Comm’n v. Power Fed. ISTORY AND ELETE H D . See . See supra . See . National ElectricityPolicy: Federal GovernmentPerspectives: . . See . See Although the FERC’s traditional the FERC’s Although the authority to regulate OT 93 91 90 89 92 N O EGAL EGAL some regulation by the FERC and instead regulates the transmission of electricity within its electricity within of the transmission FERC and instead regulates by the some regulation connection of its transmission lines connection of lines its transmission only states that currently are not regulated by the FERC due to the broad interpretation of not regulated by the FERC due to the broad interpretation of that currently are only states electric “transmission noteworthy that this recognition by the courts was the reason that Texas limited the is also reason for expansion relates recognition to judicial of the physical properties of electric have explained, transmission. Physical scientists and the physical properties of electricity,courts have accepted, that due to when electricity is transmitted intrastate to be it should be deemed traveling Thus, nearly all tran transmission in inte However, as electricity markets grew, interstate interconnection increased, thereby increasing the FERC’s regulatory power. the electric grid. When the FPA was passed, the electric grid had few interstatelines because electricity transmission were local. markets Subcomm.EnergyQuality & Air on the of H. Comm. on Energy & Commerce (2001) (prepared statement of Hon. Francis Blake, Deputy Secretary, Dep’t of Energy). Blake, Francis statement of Hon. (2001) (prepared
Energy Economists and Physicists as Amici Curiae Supporting Respondents, New York v. as Respondents, Amici Curiae Supporting and Energy Economists Physicists to the that due (explaining WL 605124) (2001 00-568), (No. 1 (2002) U.S. 535 FERC, physical properties of electricity, electricity flows at a instead but a state, of boundaries artificial to the and is not confined interconnected grid to be present at be considered should commerce includesof electricity via sales resale when that electricity is transmitted for to tr connect that eventually lines transmission physical properties of elect (upholding the FERC’s in (upholding the FERC’s L
allow for adequate regulation for adequate allow of the NUSP-consumercyber security concerns. authority the transmission to regulate wholesale and sales of electricity commerce has that occur in interstate D 546 transmissionwholesale and sales of electricity interstate that occur in allow authority does not the years, this has expanded over commerce for ofregulation NUSP-consumer growth in the amount of inte electricity, and (2) judicial recognition of the physical properties of electricity. Co. v. Fed. Power Comm’n, 324 U.S. 515, 529-31 (1954), and how the test has been applied the test has been applied how and 529-31 (1954), U.S. 515, 324 Comm’n, Co. v. Fed. Power expansively). 9-10 (2008) (describing the Supreme Court’s “technological transmission test” for determining the Supreme Court’s “technological transmission 9-10 (2008) (describing occurs when electric transmission 30555_cdt_9-2 Sheet No. 110 Side B 08/09/2011 09:04:54 B 08/09/2011 110 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 111 Side A 08/09/2011 09:04:54 , PM
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E These
. 97 547 ED NSWERS , F EVELOPMENT NUSP-consumer NUSP-consumer D ke decisions about 96 See ERCOT RID RID G , A interactions do not involve MART S Each of these statutes extends 101
note 86. note 86. ROVIDERS IN IN ROVIDERS 94 P consumer can ma supra ., note 91, at 9. at 9. 91, note ERVICE S supra TILITY TILITY -U and the ARRA. ON , http://www.ferc.gov/industries/electric/indus-act/rto/ercot.asp (last , http://www.ferc.gov/industries/electric/indus-act/rto/ercot.asp Fleisher, N 100 N ’ Because NUSP products/services Because NUSP allow consumers to OSSELMAN ET AL OSSELMAN Transmission of electricityphysical transport or is the B 98 95 OLE OF OF OLE OMM Part II.A. see also also see R C 6/21/2011 RED HE F Fed. Power Comm’n v. Fla. Power & Light Co., 404 U.S. 453 (1972). (1972). 404 U.S. 453 & Light Co., v. Fla. Power Fed. Power Comm’n
ELETE the EISA, D . See . See . Electric Power Transmission . See supra . See . Id. 99 The EPAct of 2005 changed the traditional electric regulatory the traditional The EPAct of 2005 changed Fortunately for the FERC, has increased the FERC’s Congress Regardless ofRegardless the expansion of traditional the FERC’s regulatory OT 95 94 96 97 98 N EGULATORY EGULATORY O M K
updated Jan. 20, 2011). 2011). updated Jan. 20,
partial regulatory authority to the for NUSP-consumer FERC interactions. However, this partial authority is inadequate to properly address NUSP-consumer cyber security concerns. framework by giving the FERC authority to regulate the “reliability” of state via its own Electric Reliability Council of Texas (ERCOT). (ERCOT). Texas of Electric Reliability Council state via its own R authority wholesale to regulate sales of electricity in interstate commerce this new to in proportion grown has interstate of interpretation transmission more frequently are now much wholesale sales because found to be in interstate commerce. D 2011]T services are performed by gathering a consumer’s electric data and usage then analyzingso that it the electricity use. collect and analyze electric usage data, but do not transmit or sell electricity to the consumer, NUSP-consumer wholesale sale or transmission of electricity, cannot and the FERC authority. Thus, the FERCregulate themunderits traditional regulatory must seek another jurisdictional hook if it is to regulate NUSP-consumer interactions. range of jurisdictional powers via three the EPAct of major statutes: 2005, interactions involve or service the provision of a product by NUSPs to consumers used for EEA or load management. that can be http://www.answers.com/topic/electric-power-transmission (last visited Feb. 11, 2011) visited Feb. 11, http://www.answers.com/topic/electric-power-transmission (last Terms Technical and McGraw-Hill Dictionaryof Scientific (providing the definition from the (6th ed. 2003)); flow of electric energy end use locations. to powers, the FERC does not have authority FERC does not powers, the NUSP-consumer to regulate not involve interactions do because these interactions either the wholesale sale or transmission of electricity.Wholesale sales of electricity are sales of electricity betweenare not the ultimate users entities who of the electricity. 99. 824 (2006). § Power Act at 16 U.S.C. Federal an amendment to the as Codified 100. (2010). § 17385(d) U.S.C.A. 42 Act of 2007 § 1305(d), and Security Energy Independence of 42 U.S.C.). scattered sections 101. in (to be codified 123 Stat. 115 Act of 2009, Pub. L. No. 111-5, American Recovery and Reinvestment
C Y 30555_cdt_9-2 Sheet No. 111 Side A 08/09/2011 09:04:54 A 08/09/2011 111 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 111 Side B 08/09/2011 09:04:54 M K C Y PM
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ELIABILITY R
The EPAct of NERC 109
: The FERC could The FERC 103 . [Vol. 9 [Vol.. ILESTONES standards suggested by the suggested by standards M
However, at best this authority ., interconnected electric energy 106 ORP C To accomplish this, the FERC was ordered was ordered FERC this, the accomplish To
102 107 ELIABILITY J. L ON TECH. HIGH & TELECOMM. R
. LEC
E
. 108 M 6/21/2011 In 2006, the FERC approved the North American Electric the North American the FERC approved In 2006, A 4 (2007). 4 (2007). The FERC’s authority to regulate The FERC’s authority the reliability of the grid 104 §§ 824(o)(d-e).
. . 105 ELETE D . Id . Id . Id. The “bulk power system” is defined as both “facilities and control [O]perating the elements of the Bulk-Power System within within System of the Bulk-Power elements [O]perating the voltage, and stability limits so equipment and electric system thermal, of such or cascading failures separation, uncontrolled that instability, a disturbance, including system will not occur as a result of a sudden of system failure or unanticipated Incident, Cybersecurity elements. Reliability or “reliable operation”Reliability or “reliable in § 215(a)(4) as codified the of OT 104 109 103 N O TANDARDS N. 105. to appoint organization reliability electric an (“ERO”)would that reliability standards. mandatory electric establish would only be a partial solution to these concerns because itspartial solution to these concerns would only be a powers development within to the “reliability” of smart grid would only extend the “bulk power system.” that the cyber security threats are a based on an assumption argument is This 106. the grid’s “reliability.” consideration for 107. (2006). § 824(o)(a)(1) 16 U.S.C. 108. (2010). § 39.1 18 C.F.R. arguably encompasses of cyber security the regulation related concerns to smart grid development because security have the potential violations to jeopardize the reliability of the grid. 2005 specifically excludes “facilities used2005 specifically excludes “facilities in the local distribution of 102. (2006). § 824(o)(b)(1) 16 U.S.C. S This definition clearly contemplates cyber security component of as a to use this provision“reliable operation.” However, the ability to regulate the cyber security concerns of smart grid development is extinguished by only regulate cyberthe limitation that the FERC may security when it “bulkinvolves the reliable operation of the power system.” systems for operating an necessary transmission network” and “electric energy from generating facilities system reliability.”needed to maintain transmission the “bulk power system.” power the “bulk D 548 FPA is defined as then adopt and enforcethen adopt electric reliability these via civil standards penalties. NERC. Reliability CorporationReliability and in 2007 the ERO, (“NERC”) to become the reliability mandatory FERC approved 30555_cdt_9-2 Sheet No. 111 Side B 08/09/2011 09:04:54 B 08/09/2011 111 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 112 Side A 08/09/2011 09:04:54 PM
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Smart Smart LEMENT E 115 Because Because 549 note 66. OADMAP TO TO OADMAP 113 7 (2009). 7 (2009). supra ., R , EC S EVELOPMENT EPORT MPEDANCE I have stated that the have stated D R RID RID G are likely excluded from OMELAND OMELAND MART 5 (2006). 5 (2006). H S RELIMINARY P of bulk power system. Control
note 2, at 2. , , such as the provision of smart the provision of , such as us, it is likely that the FERC’s -consumer interactions take place T OF ’ ECTOR S OPOLOGICAL AND OPOLOGICAL EP supra
, ROVIDERS IN IN ROVIDERS smart meters D P YSTEM
., T S NERGY NERGY AL U.S. . E
NERGY ERVICE E S & OWER -P T OF T OF ’ TILITY TILITY ULK -U EP NERGY NERGY B Some employees at the FERC at the FERC Some employees D E ON
ESIEUTRE ET ESIEUTRE 111 N L
from this definition. from is unclear what it is However, primarily located, YSTEMS IN THE IN YSTEMS U.S. S C. 110 T OF ’ OF THE THE OF OLE OF OF OLE while others state that it describes “low-voltage state that it while others facilities EP R 6/21/2011 112 D this development falls outside of the FERC’s reliability falls outside of the FERC’s this development HE
, 111th Cong. 5 (2009) (statement of Kevin A. Kelly, Director, Div. of Policy Kelly, A. Kevin of (statement 5 (2009) Cong. , 111th 114 ONTROL ONTROL (TIER) ERNARD ELETE C D . See generally . See . on Energy & on Energy of the S. Comm. Before the Subcomm. Hearing Net Metering: . Cyber Attacks and Physical from Grid Electric Modern the Securing See The FERC’s reliability authority is even less likely to cover NUSP- OT 114 113 112 N ANKING O ECURE ECURE M K Natural Res. Comm’n). Energy Regulatory Fed. Innovation, Policy and Dev., Office of Energy
used to deliver energy in used to deliver one direction retail end-users.” to general development of the smart grid of the general development placemeters, largely takes at the local distribution facilities and grid facilities, B 110. 111. (2006). § 824(o)(a)(1) 16 U.S.C. R S electric energy” D 2011]T bulk power system definitionbulk power excludesnearly all grid in some facilities large cities, considered local distribution a facility part of the is considered and what system.bulk power
meters perform providing this exact role by of electric functional control the EPAct of operation of the grid. However, because usage for effective 2005 specifically excludes local distribution and grid facilities, where smart meters are the bulk power system definition. Th regulatory authority over grid reliability does not extend to the cyber security of smart grid concerns development taking place at local distribution and grid facilities. consumer interactions. These interactions are presumably outside the scope of the bulk power system definition because these interactions are not similar to large scale control systems. of bulk The definition power as “facilities such scale system seems to contemplate large operations grid and control systems” operating used for a transmission network. NUSP- consumer interactions do not occur on scale, a large but instead are more from the bulk power system than localized and thus farther removed local distribution which or grid are exempted from the facilities, bulk power system definition. In fact, NUSP at the smallest and most local level possible: the consumer’s residence. Additionally, it is unclear that NUSP services are control systems used for “operating a transmission network.” NERC’s reliability standards authority. This is unfortunate because smart metersunfortunateThisauthority. might be considered because is “control systems” under definition the as “facilities,systems are defined equipment, services, and systems, diagnostics that provide functionalthe for control capabilities necessary bulk [power] of the the effective and reliable system.” operation 115. U.S. 115. C Y 30555_cdt_9-2 Sheet No. 112 Side A 08/09/2011 09:04:54 A 08/09/2011 112 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 112 Side B 08/09/2011 09:04:54 M K ., ., C Y PM
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A Thus, it is Thus, it 117 NTEROPERABILITY The FERC has I 1.5, 1 (2010). (2010). 1.5, 1 Once the NIST This jurisdiction This jurisdiction
. 122 121 118 NFO I Frequently Asked Questions – Asked Frequently TANDARDS FOR THE ERSION ERSION S . [Vol. 9 [Vol.. V ncerns without reinterpreting her larger scale aspects ofher larger scale aspects smart NTRODUCTION TO NTRODUCTION ty to mean that it may adopt HECKLIST ELIABILITY , I C R
Interoperability is defined as “the ., 2 in Standard CIP–002–1 (2006). (2006). CIP–002–1 Standard 2 in 120 NERGY them, provided they smart-grid “insure which equals 0.00126 MW needed each hour of needed MW 0.00126 which equals E ORP OUNCIL NUSP services, however, NUSP services, are usedby the C C 116 MERICA per year A J. L ON TECH. HIGH & TELECOMM.
NTEROPERABILITY I ORTH ELIABILITY S R ’ N
. RCHITECTURE RCHITECTURE A LEC AKER E ISE
. -M 6/21/2011 W the FERC cannot use its EISA authority to adequately M YSTEMS OF YSTEMS A 119 at 37,100. at 37,099. S RID ELETE , U.S. D ECISION . Id. . Id. Although the EPAct of 2005 fails to vest the FERC with the fails to vest the FERC with the of 2005 Although the EPAct The EISA has changed the traditional electric regulatory framework D OT 119 120 N LECTRIC O likely that thelikely that regulate NUSP-consumer FERC cannot interactions to account for cyber security concerns or ot throughgrid development because its EPAct of 2005 reliability authority these interactions do not meet the definitional criteriathe over which authority. FERC has reliability to adequatelyjurisdiction needed regulate the cyber security concerns of smart grid development and NUSPs, the EISA does provide new it with jurisdiction tied directly to smart grid development. address NUSP-consumer cyber security co its jurisdictional authority. by directingNIST to develop the to ensure standards smart grid interoperability.functionality and 122. (2010). § 17385(d) U.S.C.A. 42 Act of 2007 § 1305(d), and Security Energy Independence http://tonto.eia.doe.gov/ask/electricity_faqs.asp#electricity_use_home (last visited Feb. 11, http://tonto.eia.doe.gov/ask/electricity_faqs.asp#electricity_use_home home use?”). American an much electricity does “How 2011) (select 118. 16, 2009). (July 37,098 74 Fed. Reg. 37,098, Smart Grid Policy, G 121. 116. N. 116. E describe one such control system as “[s]ystems and facilities critical and facilities as “[s]ystems system such control one describe to automatic shedding load system control common under a of capable 300 MW or more.” shedding D 550 has developed these standards, the to instituteFERC is required rulemaking proceedings to adopt functionality and interoperability in interstate transmission of electric power, and regional and wholesale markets.” electricity AND consumeraugmenting monitoring and in electricity usage—a function nothingthat has to do with transmission controls and which electricity 300 MW. scale smaller than magnitudes of usage many capability of or units to provide and systems receive services and information between each other, and to use the services and information . without significant user intervention.” . . exchanged 117. average U.S. the 2008 in Administration, Information Energy U.S. According the used only 11.04 MWh household hours/day). ÷ 24 365 days every day (i.e., 11.04 MWh/y ÷ Electricity gives the FERC the powergives the FERC the to regulate NUSP-consumer interactions, but because the FERC has interpreted its authority under this act narrowly, interpreted this delegation of authori 30555_cdt_9-2 Sheet No. 112 Side B 08/09/2011 09:04:54 B 08/09/2011 112 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 113 Side A 08/09/2011 09:04:54
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551 , such as the This power 124 EVELOPMENT The FERC has D 128 RID RID rpreted a limitation on G that these concerns are MART note 53, at 10. 53, at 10. note S by mandating the adoption of the Because NUSP Because devices Thus, while the FERC has the Thus, while the FERC has the ROVIDERS IN IN ROVIDERS 123 P 126 ERVICE S
TILITY TILITY
tate commerce jurisdiction. -U 127 ON N OLE OF OF OLE explaining that while standards are being developed it will explaining that while standards are R 6/21/2011 129 HE This policy requires applicants seeking smart grid cost recovery This policy requires applicants Smart Grid Initiatives and Technologies, supra
at 37,110. at 37,098. at 37,099.
130 ELETE D . Id. . Id. . Id. . Id. . See Although the FERC’s self-imposed enforcement limitationAlthough the FERC’s self-imposed OT 130 129 128 127 125 N O M K
126. 16, 2009). (July & 37,101 74 Fed. Reg. 37,098 Smart Grid Policy, TED and are used smart grid features” are “devices with or AlertMe, by retail consumers,”“directly to regulate these FERC has authority the devices through are necessary as long as the standards NIST standards for insuring “functionality and interoperability in interstate transmission wholesale electricity. markets.” . . and of electric power, very nearly gives the FERC the ability to address the cyber securitythe FERC the ability to address very nearly gives However, the FERC has inte concerns of NUSPs. this new power that significantly restricts its efficacy: the EISA omits the additional authority or enforce these standards. for FERC to mandate The FERC acknowledged this limitation in its Smart Grid this limitation in its The FERC acknowledged Policy . enforce . . Statement by stating to that it “does not [have] authority or to “direct[these] standards” to implement any particular states retail customer policies or programs.” to (1) demonstrate that “the reliability and security of the bulk-power 123. 16, 2009). (July & 37,101 74 Fed. Reg. 37,098 Smart Grid Policy, 124. (2010). § 17385(d) 42 U.S.C.A. interoperability for standards “all electric facilities power devices and with gridsmart and level distribution at the local those including features, directlythose used by retailis necessary as the standard customers so long [statedfor the purpose in the act].” D 2011]T authority to enact standards that address NUSP-consumer cyber security ensure concerns, the FERC effectively cannot thesolutions availableare for only actually minimized. Accordingly, the FERC to reinterpret its interoperability as suggested by the authority or, Kelly, for CongressFERC Commissioner Suedeen to consider additional legislation. condition cost recovery on principles laid out in its “Interim Rate Policy.” acknowledged its intention to do this in its Smart Grid Policy Statement, significantly restricts the efficacy of the interoperability standards, thesignificantly restricts the efficacy to enforce the standardsFERC does have a limited ability indirectly via its traditional cost-recovery ratemaking powers. Under this alternative, the FERC could bypass the limitation interoperability standards as a condition of parties recovering costs through rate regulation under the FERC’s traditional sales and wholesale transmission in inters C Y 30555_cdt_9-2 Sheet No. 113 Side A 08/09/2011 09:04:54 A 08/09/2011 113 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 113 Side B 08/09/2011 09:04:54 M K
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. NN A Under this
. ties, services, 137 TAT S
. EV R
. . [Vol. 9 [Vol.. and (3) share certain and (3) s do not have the authority OLO wers of PUCs may, at the the at wers of PUCs may, or any portion thereof.” C or any portion 132
for the development of the of the for the development . § 723-1 (2011), lay out the powers of powers lay out the (2011), § 723-1 . n-utilities and consumers, and EGS to regulate the facili tion and legislation, and the U.S. . In reality, PUC powers vary R not delegated not to the FERC and §§ 25.5(41), (92) (2011). (2011). (92) §§ 25.5(41), ODE ODE However, a PUC’s electric regulatory However, a PUC’s electric C ., art. XXV, the C .,
. ODE 136 This indirect enforcement This of the C
. OLO ONST 133 C
. DMIN
J. L ON TECH. HIGH & TELECOMM.
A
OLO . (2) show that it has minimized it has show that (2) the possibility of EX 131 Under this framework, the po the framework, this Under text accompanying notes 87-88. notes text accompanying Part III.A.2. 135 Thus, these interactions by will go unregulated the FERC. 6/21/2011 2. PUCs—No Authority to Regulate § 216 (West 2010). Whereas in Texas the PUC can regulate public utilities can regulate public PUC the Whereas in Texas 2010). 216 (West § 134 at 37,111. . . ELETE ODE D . Id . Id infra . See . Id. . See supra . See C The regulate the powers of PUCs to electric grid are limited by the
. OT 132 133 134 131 137 N TIL O electricity” in Texas. 16 T 16 electricity” in Texas. performed for, or the commodity is delivered to, the public performed for, or the commodity is 135. For example, the C [Texas] equipment or facilities to produce, generate, transmit, distribute, sell, or furnish transmit, distribute, produce, generate, or facilities to [Texas] equipment and rates of electric utilities operating within that state for the purposes of locally. distributingand electricity selling retail electricity authority generally includes the power
stranded costs for smart grid equipment, costs for smart stranded maximum, extend to all the powers precluded by the U.S. Constitution from state to state. somewhat to regulate the NUSP-consumer cyber security concerns because NUSP- consumer interactions occur between no consumers. and utilities between interactions regulate PUCs can only general regulatory authority, a cursory analysis of NUSP-consumer analysis of NUSP-consumer a cursory authority, regulatory general interactions is enough to demonstrate that PUC 101 to -104 (West 2010), and the C and the (West 2010), 101 to -104 the Colorado PUC. the Colorado PUC. can regulate public utilities, including “electrical PUC For example, California’s 136. or operating, controlling, owning, or corporation as any person defined corporations,” “where the service iswithin California for compensation any electric plant managing U
system will not be adversely affected by the deployment by affected be adversely will not system grid of smart at issue,” facilities D 552 information with the DOE Smart Grid with the DOE information Clearinghouseso that the smart grid deploymentfeedback provides useful interoperability standards. including “electric utilities” defined as “a person . . . that owns or operates for compensation in compensation in for that owns or operates including “electric utilities” defined as “a person . . . interoperability standards allow thewill FERC to bypass its self-imposed jurisdictional limitation. the it willHowever, to regulate FERC not allow concerns of smartthe cyber security grid development related to NUSP- consumer interactions because NUSPs are not utilities will seek cost that recovery, they were, NUSP and even if services would not fall under the FERC’s ratemaking authority are not wholesale sales of because they electricity. powers of the FERC, a state’s constitu Constitution. 30555_cdt_9-2 Sheet No. 113 Side B 08/09/2011 09:04:54 B 08/09/2011 113 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 114 Side A 08/09/2011 09:04:54
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553 EVELOPMENT D RID RID scope of the FERC’s powers of the FERC’s scope G Additionally, PUCs can note 53, at 10 (in which FERC note 53, at 10 (in which FERC 139 that development relates to MART t importantly, a PUC can S supra , was formally adopted by the city, (2) whether or not to adopt and has been codified in state r how the smart grid the smart r how As develops. 140 t grid devices/services and create t grid devices/services 141 and how they allow consumers to , ROVIDERS IN IN ROVIDERS In turn, common law considers the P 143 nsequence, and affect the community at at even asserting the full ERVICE . § 40-1-103(1)(a)(I) (2010) (stating any entity “declared any (stating (2010) 40-1-103(1)(a)(I) § . S TAT S TILITY TILITY
. -U EV Munn v. Illinois ON R
. N , as the source of the definition of public utility). utility). of public definition of the source , as the OLO OLE OF OF OLE ARIS , C R M , 94 U.S. at 126. 126. at , 94 U.S. 6/21/2011 HE The common law defines a public utility as private property The common law defines a public
. In practice this definition seems difficult to apply. However, 142 ELETE 144 D . Id. e.g. . See, . Technologies and Initiatives Grid Smart See . Munn . Id In relation powers the new to of entities, other new and the FERC PUCs regulate “public utilities.” The definition of “public utility” is ORTIBUS ORTIBUS OT P 141 142 139 143 144 N E O M K under the FPA, the FERC’s Smart Grid standards entities, excluding FERC’s Smart will only apply to certain under the FPA, the PUCs). 140. Hale’s treatise, Justice Lord Chief D (citing (1876) 126 113, 94 U.S. Munn v. Illinois, Commissioner Suedeen Kelly states th Supreme Court in statutes. These powerstools for controlling are strong smart grid development. can choose to ignore the FERC’sFor example, PUCs interoperability standards for smar and functionality their own when those devices/servicestheir own when those for the purposes are only used of distribution of electricity.retail sales or local
states have eliminatedad hoc basis the need to use the definition on an 138. 16, 2009). (July & 37,101 74 Fed. Reg. 37,098 Smart Grid Policy, D 2011]T by law to be affected with a public interest” is a public utility). public interest” is a with a public be affected by law to “affected with a public interest.” control by using smart grid development their ratemaking authority to limit the types recoveredgrid expenditures which may be of smart through rate regulation. Lastly, and mos control the policies surrounding retailcontrol the policies surrounding sales and local distribution of electricity, which encompasses the actual implementation and function of smart grid technologies. can determine Through this power the PUC how advanced meters are installed respond to real-time pricing. aspects of smart grid Because many in these three areas, PUCs development depend upon PUC decisions retain substantial control over how the smart grid develops. However, this control does not extend to NUSP-consumerinteractions. private property to be affected with a private property to be affected with in apublic interest when it is “used manner to make it of public co large.” PUCs retainPUCs deal a great ove of control point out in its was careful to the FERC Smart Grid Policy Statement, authorityPUCs retain may recover from what costs utilities to decide (1) ratepayers grid for smart when development retail distribution sales or local of electri interoperability and functionalitygrid, for the smart standards and (3) how to regulate retail electric consumers smart grid. in relation to the derived from English common law, C Y 30555_cdt_9-2 Sheet No. 114 Side A 08/09/2011 09:04:54 A 08/09/2011 114 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 114 Side B 08/09/2011 09:04:54 M K
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. [Vol. 9 [Vol.. use
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out corporations such as NUSPs or managing any electric plant for operates for compensation in [Texas] A common thread among these states’ 1686 (9th ed. 2009). (9th ed. 2009). 1686 150 the consumer. This limitation guides the § 216 (West 2010). 2010). (West § 216 §§ 25.5(41), (92) (2011). (2011). (92) 25.5(41), §§ to . § 40-1-103(1)(a)(I) (2010). 40-1-103(1)(a)(I) . § J. L ON TECH. HIGH & TELECOMM. The entities declared entities The in most utilities to be public ODE ODE . § 40-1-103(1)(a)(I) (2010). (2010). . § 40-1-103(1)(a)(I) TAT C C 145 ICTIONARY
S . .
. D TAT S
TIL EV . U AW R
DMIN . . EV L A
R S . ’ UB . 6/21/2011 P OLO EX . C
OLO of electricity . AL LACK ELETE D . Id . See A sample of state definitions of public utility suggests that NUSPs Even if one believes that it is ambiguous as to whether or not OT 147 149 N O 150. 16 T 16 150. 146. B 146. Colorado’s definition of a public utility is nearly identical, stating that of a public utility is nearly identical, Colorado’s definition operate fordeemed to be public utilities if they electrical corporations are supplyingthe purpose of with use of electricity. the public Additionally, in Texas, public utilities include “electric utilities” defined owns. that or . . as “a person generate,equipment or facilities to produce, transmit, distribute, sell, or furnish electricity” in Texas. definitions is the limitation that for to be declaredprivate corporations public utilities they must provide related to the an electric service provision 145. or corporation, electrical corporation, telephone corporation, water corporation, person, gas corporation, carrier, pipeline as “every common utility” a “public defines Colorado municipality operating for the purpose of supplying the public for domestic, mechanical, or public affected with a be to every corporation,uses and or person declared by law public interest.” C by supplying concrete statutory lists of statutory concrete by supplying state declares that the entities the public utilities.to be D 554 C 148.
“[m]ost utilities as operate “forcarry on operations monopolies” that the accommodation the members of the public, of whichentitled are as a matter of right the enterprise’s to use facilities.” are likely not public utilities. For example, in California public utilities utilities.are likely not public example, For include “electrical defined as any corporations” person or corporation owning, controlling, operating, is performed California “where the service compensation within for, or delivered to, the public or anythe commodity is portion thereof.” states are those that “provide[]states are as the public, such services to necessary electricity, lines and service, telephone and water.” consumer. It also clearly leaves out NUSPs that provide products to consumers rather than services. NUSPs fall under public utility a state’s definition, NUSPs are unlikely to be deemed public utilities by a state court because they do not meet decisions as to when a private the underlying limitation guiding enterprise should public be deemed a utility. For example, in applying the limitation outlined above to NUSPs such as Energy, Inc. or AltertMe.com, Ltd., neither provides necessary services to the public or water, neither are monopolies, similar to the provision of electricity application of the definition and leaves that provide services that are related to the 30555_cdt_9-2 Sheet No. 114 Side B 08/09/2011 09:04:54 B 08/09/2011 114 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 115 Side A 08/09/2011 09:04:54 PM
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TATUTORY TATUTORY 555 S
Moreover, if ., 153 ERV (2008).
S EVELOPMENT Responsibility for 39 D technologies, the progress technologies, Without more, the 154 istant Secretary, and other Secretary, and other istant RID RID 152 G RENDS RENDS T MART ESEARCH ESEARCH S R
ECENT ECENT . development of the smart grid by titled as a mattertitled to use of right R The ARRA charged the DOE with ONG these companies conduct business conduct companies these as ROVIDERS IN IN ROVIDERS P this authority it is likely that the very , C However, this grant of authority However, this grant cannot be IM ERVICE the developmentof smart grid S K 151 advise the Secretary, the Ass advise the RINCIPLES AND AND RINCIPLES P TILITY TILITY ULE -U ON N Y ENERAL G
: OLE OF OF OLE R 6/21/2011 3. The DOE—No Authority to Regulate HE § 17383(a)(2) (stating the mission of the Smart Grid Advisory Committee, which Smart Grid Advisory Committee, of the the mission (stating § 17383(a)(2) ELETE D . See generally . Id. The ARRA also charged the DOE withThe ARRA also charged the DOE some responsibility over The EISA charged the DOE with the responsibilityThe EISA charged of creating a The plain language of the EISA indicatesThe plain language DOE that the may create OT 153 152 N O NTERPRETATION M K the SGTF for the limited purpose of streamlining federal government smart grid development efforts by allowing the SGTF to advise other smart grid.agencies on the development of the relevant Federal officials concerning concerning relevant Federal officials oversees the SGTF, “shall be to services, the evolution of and use of smart-grid technologies national transition to the of a interoperability and widely-accepted technicaland protocols to allow standards and practical optimum means of using devices, and the capable smart-grid among inter-communication progress”). such Federal incentive authority to encourage the DOE attempted to take on be frustrated because it would purpose of the SGTF provision would inject confusion into the regulation and splitting up regulatory authority over the smart grid. Thus, the DOE does not have authority to regulate NUSP-consumer interactions viathis provision. the development of the smart grid. the responsibility of awarding grants for smart grid projects and developing a smart grid information clearinghouse. Smart Grid Force (“SGTF”) Task and to “insure awareness, coordination Government [activities]. Federal related to smart-grid . . integration of practices.” technologies and DOE cannot interpret this language DOE cannot interpret this language to permit it to regulate NUSP- consumer interactions because sucha delegationauthority of is significant enough to necessitate plain statutory language. I § 42 U.S.C.A. § 1303(b)(2), Act of 2007 Independence and Security Energy 151. (2010). 17383(b)(2) and membersand public of the are not en Instead, services. companies’ either D 2011]T associations,for-profit the servicesthey provide are simply beneficial to the consumer but not “necessary,” only of the public and the members to use these companies’have a right services upon entering into private with them. Thus,contracts are not public NUSPs utilities, and NUSP- consumer interactions cannot be by PUCs. regulated 154. § 17384). U.S.C. at 42 be codified Stat. 115 (to § 405, 123 111-5, Pub. L. No. Act of 2009, American Recovery and Reinvestment construed to grant the DOE power to regulate NUSP-consumerto DOEconstruedcyber power to grant the security concerns. C Y 30555_cdt_9-2 Sheet No. 115 Side A 08/09/2011 09:04:54 A 08/09/2011 115 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 115 Side B 08/09/2011 09:04:54 M K
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NERGY E T OF approach to ’ EP NNOUNCEMENT D A
note 155, at 40. note 155, at 40. U.S.
, supra , UNDING UNDING . [Vol. 9 [Vol.. It also interpreted this F 158 note 53, at 5-6. 53, at 5-6. note ELIABILITY ELIABILITY R These interpretations of the R assurance that their r to regulate NUSP-consumer 159 Thus, this new responsibility does clearinghousenot permit does the d to mean authority to evaluate the PPORTUNITY PPORTUNITY and even this power is restricted to and even this power 156 O available at available (Oct. 27, 2009), (Oct. NERGY NERGY NERGY NERGY E
E
& COM & . The DOE had the responsibility to award EWS SSISTANCE SSISTANCE N 157 A ELIVERY ELIVERY J. L ON TECH. HIGH & TELECOMM. ELIVERY RID D D
. . G LEC LEC Although authoritycreate the clearinghouse allows to E E MART INANCIAL 155 F
: 6/21/2011 CT A FFICE OF OF FFICE FFICE OF FFICE OF ELETE D . Go to 100 Grants Stimulus Grid Smart in Money’s Worth? $3.4 Billion Will We Get Our . See Smart Grid Initiatives and Technologies, supra , S Although the authority to award smart grid grants gave the DOE a to award smart grid grants gave Although the authority OT 157 156 N ECOVERY ECOVERY O Projects DOE’s smart grid grant authority allowedDOE’s smart grid grant authority the DOE to control the security issues of smart grid grants by rejecting projects that did not meet threshold standards. However, the DOE has already exercised security control the securitythis grant authority so it cannot further issues related the DOE to create an information resource by requiring disclosure of an information resource by requiring the DOE to create information from smart grid grant applicants, it does not authorize the than collect data DOE to do more entities that a grant award. apply for 159. 2009). n.179 (July 16, & 37,113 74 Fed. Reg. 37,098 Smart Grid Policy, smart grid grants, which it interprete cyber security will prevent broad based systemic failures in the electric grid in the event of a cyber security breach.” cyber security vulnerabilities of proposed smart grid projects and reject those that “cannot provide reasonable http://www.smartgridnews.com/artman/publish/Stimulus_News_Digest_News/Will-We- Get-Our-Money-s-Worth-3-4-Billion-in-Smart-Grid-Stimulus-Grants-Go-to-100- Projects-1336.html. O 158. (2009), (2009), http://www.bpa.gov/energy/n/smart_grid/docs/1306_Smart_Grid_investment_program_fundi ng_announcement.doc. R 155. O 155. developing a smart grid a developing information to regulateDOE securitythe cyber of aspects NUSP-consumer that itresponsibility to mean interpreted this The DOE has interactions. about information and detailed “comprehensive must provide the performance,attributes, grid benefits of smart costs, and impacts, techniques” tools, and technologies, “direct through sharing and dissemination of information on knowledge gained, learned, lessons and best practices.” D 556 responsibility a potential grant recipient to show to allow it to require . if available . . that its project would use “open protocols and standards and appropriate” to facilitate interoperability by allowing vendors to design and build smart grid systems equipment and that can function in tandem with the approved projects. interactions. control over NUSP-consumersmall amount of interactions, the opportunity to exercise this passed because the DOE has power has already issued its grants. not extend to the DOE the powe 30555_cdt_9-2 Sheet No. 115 Side B 08/09/2011 09:04:54 B 08/09/2011 115 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 116 Side A 08/09/2011 09:04:54
In PM
160
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ATIONAL ATIONAL N 557 available at Fed. Commc’ns HE Accordingly, T 164
: In other words, pdate policies, set EVELOPMENT see also see 163 D RID RID G MERICA A MART S art grid and perhaps NUSPs. n the energy smart grid sector, Consequently, made the FCC has
ROVIDERS IN IN ROVIDERS ONNECTING ONNECTING maximize broadband use for national P C 161
.
, 162 N ’ ERVICE S OMM C TILITY TILITY -U NS ON ’ N 7-11 (2010). 7-11 (2010). OMMC OLE OF OF OLE C R LAN 6/21/2011 P
4. The But Unlikely Able FCC—Perhaps Regulate to . HE has interpreted this authority to include development of an § 6001(k). § 6001(k). at xiv. FCC, believing that itsu role should be to ED ELETE he ARRA directed the FCC to develop a he ARRA directed Broadband National D . Id. . Id. T Although it is difficult to see how the FCC’s new authorityAlthough it is difficult to see how and OT 164 162 N O ROADBAND ROADBAND M K Plan (“NBP”) plan for use of broadband infrastructure which includes “a energy independence and efficiency.” . . . and services in advancing http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2017A1.pdf. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2017A1.pdf. F 161. 163. § 6001(k)(2)(D). Act of 2009 Reinvestment and American Recovery standards, and align incentives to standards, and align development, and cybersecurity priorities, intoNBP that takes consideratio instead of developing a “plan” that involves active involvement by the FCC, the agency has limited the plan’s scope to offering agencies,recommendations to the principal that states, and stakeholders grid are development. currently participating in smart § No. 111-5, L. 2009, Pub. Act of and Reinvestment American Recovery 160. 1305); U.S.C. § be codified at 47 Stat. 115 (to 123 6001(k)(2)(D), GN Dkt. Technology, Grid of Smart Implementation on the Sought Comment Comm’n, (2009), Notice #2 NBP Public 09-51, 09-137, 09-47, Nos. B to NUSP-consumerThus, interactions. is funding additional unless same authority, under the DOE to the allocated has no longer the DOE to regulate NUSP-consumerthe ability security cyber via concerns the smart grid grant authority. D 2011]T while it is possible for the FCC to adopt a more aggressive interpretationwhile it is possible for the FCC to adopt of its role in smart grid development via its ARRA mandate, for the time will only have a voice in developingbeing it seems likely that the FCC cyber securitystandards for the sm to define its role as one ofMoreover, the FCC may be hesitant active
turn, the agenda fit into the mix of agencies with partial authority over smart grid its role to be one of guidance and development, the FCC has interpreted assistance rather than active involvement. This is evidenced by the FCC’s decision to limit its ARRA authority narrow meaning of “plan” to the . in . . a “plan for use of broadband within its mandate of developing . energy independence and efficiency.” . . advancing recommendations in the NBP that seekrecommendations grid to modernize the electric that it iswith broadband so more reliable will allow for and efficient and energy innovation in homes and buildings by making electric usage data readily accessible to consumers. C Y 30555_cdt_9-2 Sheet No. 116 Side A 08/09/2011 09:04:54 A 08/09/2011 116 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 116 Side B 08/09/2011 09:04:54 M K
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170 OMELAND H note 115. these efforts” and efforts” these T OF ’ However, this EP supra 165 ., D
EC tal entities and the private and the entities tal S . [Vol. 9 [Vol.. This roadmap merely rns, it unlikely seems that 169 115 (2009) (describing the role of the (describing (2009) 115 note 43, at 14-15 (describing the the (describing note 43, at 14-15 LAN OMELAND P the lead in many of the lead in many must configure their information systems information their configure must supra H
ntional cyber assault with no loss ., note 43, at ix; U.S. note 43, EC other agency the administrative to T OF T OF Thus, the DHS does not have Thus, the DHS does not have ’ S ing a lowest-common denominator approach to to approach a lowest-common denominator ing supra 171 EP ., ., D
ROTECTION EC P S U.S.
assistance to other governmen assistance to &
OMELAND OMELAND H J. L ON TECH. HIGH & TELECOMM. federal government take federal government take OMELAND OMELAND NERGY NERGY T OF H ’ E EP D NFRASTRUCTURE NFRASTRUCTURE T OF T OF T OF
’ ’ I EP EP at 2. at 2. 6/21/2011 For instance, the DHS worked with the DOE to create the In other words, the DHS has no authority these to mandate D D 5. The DHS—No Authority to Regulate
U.S. id. 167
166 . at 1. . at 1. . ELETE ATIONAL ATIONAL D . See . Id . See . Id The DHS was given responsibility security for the cyber of non- The DHS has some responsibility forThe DHS has some addressing the nation’s cyber N
OT ., 167 169 170 171 N O EC the DHS as “[p]roviding technical as “[p]roviding the DHS sector with respect to emergency recovery plans”). “Roadmap to Secure Control Systems in the Energy Sector” in 2006. in the “Roadmap to Secure Control Systems cybersecurity.”). cybersecurity.”). U.S. 168. “[b]road regulations mandating how all corporations all corporations how mandating regulations “[b]road by creat could divert more successful efforts functions as a framework of goals and milestones for protectinggoalsand milestonesfor controlframework of functions as a systems, with no authority to enforce or promote these goals. This document outlines a vision of both departments and stakeholdersdepartments both outlinesdocument of This a vision of control systems in the U.S. energy the electric energy industry in which sector will be able to withstand “an inte of critical function in critical applications.” roadmap alsoprovides a drawn-out ten-year timetable for accomplishment of these goals. narrow way in which the DHS has interpreted its grant of authority under statutes and and which under statutes DHS has interpretednarrow way in the authority its grant of thatexecutive orders, e.g., “[o]ur traditions of federalism and limited government require the organizations outside responsibilityanalysis,was limited to the provision of warnings, and supportcrisis management related to threats to, of, and vulnerabilities critical information systems as well as technical assistance (upon request) for “emergency recovery plans for failures of critical information systems.”
U.S. 165. 166. (2006). 143 § 223, 6 U.S.C. § Security Act of 2002 Homeland S regulation because such a decision would significantly complicate the complicate significantly would a decision such because regulation landscaperegulatory by adding an it will claim this authority. D 558 process. authority might have regulatory the FCC Thus, although to address NUSP-consumer security cyber conce standards, but can only suggest them, offer help in implementing them if plans to address cyber securityrequested, or help private parties create concerns.
security concerns. However, this responsibility does not extend to the However, this responsibility does security concerns. interactions.regulation of NUSP-consumer the Homeland Security Act of 2002. federal entities in 30555_cdt_9-2 Sheet No. 116 Side B 08/09/2011 09:04:54 B 08/09/2011 116 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 117 Side A 08/09/2011 09:04:54
NS NS 173 174 ’ PM in
175 1:40
LAN FOR LAN FOR OMMC P 559 C
. ED F EVELOPMENT ROADBAND ROADBAND see also see D B RID RID G MART ATIONAL S N
the FERC has the authority to , A consumer interactions. However, TR C
ROVIDERS IN IN ROVIDERS . P authorityregulate NUSP-consumer to energy independence and efficiency. NFO I ERVICE S RIVACY RIVACY TILITY TILITY n of these standards or to enforce them. P
-U . ON N LEC E text accompanying note 118. text accompanying OLE OF OF OLE R note 160, at 1. 6/21/2011 (2009) (advocating that the FCC “[s]hould [p]ursue a [w]ide [r]ange of a [w]ide [r]ange of “[s]hould [p]ursue that the FCC (advocating (2009) 2. The FCC 2. The 1. The FERC 1. The Regulate NUSP-Consumer Privacy Concerns NUSP-Consumer Regulate HE American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 111-5, No. L. of 2009, Pub. Act and Reinvestment American Recovery Smart Grid Policy, 74 Fed. Reg. 37,098 & 37,101 (July 16, 2009). (July 16, 2009). 37,101 37,098 & 74 Fed. Reg. Smart Grid Policy, The FERC has interpreted this The FERC has interpreted authority to include the ability supra , ELETE 172 N D UTURE ’ . See . See . See supra . See . See generally generally . See B. Authority to Analogues Have PUCs or the FTC’s State Only As noted above, the ARRA gave the FCC new authority to As noted above, the ARRA gave Under the current framework,regulatory authority to the FERC has The FERC, the FCC, PUCs, and theThe FERC, the FCC, and its FTC analogues state F OT 173 174 172 175 N UR OMM O M K 6001(k)(2)(D), 123 Stat. 115 (to be codified at 47 U.S.C. § 1305); be codified at 47 U.S.C. § 1305); Stat. 115 (to 123 6001(k)(2)(D),
to apply these standards to entities to the retail all the way down level. Thus, because the NIST has determined that interoperability and functionality standards should include privacy the FERC standards, has the authority to adopt privacy standards apply to entities that all the way down to the retail level. are retail-level entities Further, because NUSPs that interact directly with consumers, regulate the privacy aspects of NUSP- establish an NBP to advance Although some organizations requested that the FCC take an active role in regulating grid the privacy aspects of the smart via this authority, this regulatory authority is inadequate for proper regulation of NUSP- consumerinclude privacyit does not the authorityconcerns because to mandate the adoptio Accordingly, in order to ensure that the FERC can adequately regulate the privacy aspects of NUSP-consumerfederal legislation interactions, bepassedgivemust to the FERC these authorities. adopt the interoperability and functionality standards developed by the NIST. [a]pproaches . . . to [a]ddress [b]roadband [p]rivacy”). [p]rivacy”). [a]ddress [b]roadband to . . . [a]pproaches are all entities that have some privacy concerns. This Section explainsprivacy concerns. FCC, and why the FERC, the the FTC are currently to regulate these concerns. unable It then explains state analogues ofwhy PUCs and the the FTC may be able to do so. C O authorityregulate to NUSP-consumercyber securityconcerns its on Insteadown. their develop to agencies one of aiding is largely function its own standards. D 2011]T
C Y 30555_cdt_9-2 Sheet No. 117 Side A 08/09/2011 09:04:54 A 08/09/2011 117 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 117 Side B 08/09/2011 09:04:54 M K
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OMM OMM C C 178 ONSUMER ONSUMER These C
182 : The FCC The FCC NFORMATION 35 (1996). I 176 RADE RADE In protecting T The FTC has
RADE RADE . AIR AIR 181 ENTURY T F 179 ED C
: F
ST
. ARKETPLACE 21 . [Vol. 9 [Vol.. ED NLINE M O (2000); (2008). (2008).
om consumers regarding the 33 30 and has recognized the need , F LOBAL Although the FTC’s official at 53. at 53. 180
es that may the regulate privacy G
183 , ADE 723, 727-28 (2007). 727-28 (2007). 723, RIVACY RIVACY - Y ’ P
ECH , OC ECH S N NTICIPATING THE NTICIPATING THE ’
-T T . note 161, As a result, the FCC will likely not be the FCC will As a result, A
, ARKETPLACE ARKETPLACE IGH N ’ NFO EXT 177 OMM M I supra
notedincreasingly are users that “many H N , C N ’ EW OMM The Federal Trade Commission and Consumer Privacy in the in the Privacy and Consumer Commission Trade The Federal C N Y FOR Y FOR ’ J. L ON TECH. HIGH & TELECOMM. OMM RADE RADE OL C T P For example, the U.S. Environmental Protection Agency controls
RADE . LECTRONIC LECTRONIC NS & ’
T E
. ED F ED
, ONSUMERS IN THE IN THE ONSUMERS OMMC OLICY IN THE , F 6/21/2011 P C , 3:3 J.L. , 3:3 C
3. The FTC, Its State Analogues, & PUCs . at 55-57. ED ELETE D . See, See, . e.g. . Id. . Fair Information Practice Principles . . See, e.g. . See, Because the FTC and its state analogues are the primary and its state analogues are Because the FTC The FTC is charged with protecting consumers from “unfair and “unfair consumers from with protecting The FTC is charged OT 180 177 183 181 N O RACTICES IN THE IN RACTICES ROTECTING ROTECTION 178. is it extent although some role to protection agencies have a consumer Some other not their main purpose. labeling requirements for pesticides. 179. (2006). § 45(a)(1) U.S.C. of 1914, 15 Commission Act The Federal Trade deceptive acts or practices in or affecting commerce.” then made several recommendations,then made as with but, cyber security passed on takingconcerns, inmore active role a regulating privacy with the smart grid. concerns principles require entities to (1) notify consumers entity’s of the information practices, (2) receive consentfr information (3) practices, allow consumers information that to access the the entity has on them, (4) secure the consumers’ information, and (5) allow consumers to seek redress to enforce the entity’s promises regarding the consumers’ information.
P P P June 25, 2007). (last modified http://www.ftc.gov/reports/privacy3/fairinfo.shtm 176. F 176. the NBP thethe only FCC their about concerned personal sensitive over of control lack and data” “[i]nnovationwarned that users trust exists between lack of if a will suffer and the entities over the Internet.”which they interact with D 560 policy is self-regulation, the FTC has been actively enforcing the promises of self-regulated entities to consumers through the courts for 182. Joseph Turrow et al., Decade Coming
for protection of consumer privacy at least since 1996. for protection of consumer privacy
government agencies with jurisdiction over consumer with jurisdiction over consumer government agencies protection, able to regulate NUSP-consumer privacy concerns unless it takes a more active role under its ARRA authority. consumers, of self-regulation for cyber the FTC has pursued a policy commerce in entities which the only guidelines for regulated are the FTC’s Fair Information Practice Principles (“FIPPs”). are currently the only governmentare currently the entiti aspects of NUSP-consumer interactions. interpreted this to cover privacy concerns 30555_cdt_9-2 Sheet No. 117 Side B 08/09/2011 09:04:54 B 08/09/2011 117 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 118 Side A 08/09/2011 09:04:54 8, RA PM
E 1:40
These 186 561 Accordingly, OLICYMAKERS OLICYMAKERS P 187 RIVACY IN AN IN RIVACY P EVELOPMENT D These enforcement These enforcement agency. Currently, as 185 RID RID G Cir. 2008) (holding that some (holding Cir. 2008)
ns. However,under the ONSUMER C MART USINESSES AND Thus, while states have the S B 188 that this level would of regulation consumers would receive is some is some receive would consumers er protection note 15, at 103. ROVIDERS IN IN ROVIDERS ROTECTING ROTECTING P P
, NUSP-consumer privacy either concerns actions taken byunder the Sectionactions taken FTC 5 of the supra
N ’ ERVICE RAMEWORK FOR RAMEWORK S F 2010,
OMM . C EB TILITY TILITY F -U ON RADE RADE ROPOSED ROPOSED N P T RAFT RAFT
. For example, the FTC has brought suit and obtained suit has brought the FTC example, For A D
: ED 184 F OLE OF OF OLE
, R (describing enforcement 6/21/2011
HE Altria Group, Inc. v. Good, 129 S.Ct. 538, 551 (2008) (holding that state law Inc. v. Good, 129 S.Ct. 538, 551 (2008) (holding Altria Group, HANGE NISTIR at 47 & n.20 n.20 47 & at
C ELETE D . See . See, e.g. . See, . Id. . See . Id. In addition FTC, many states to the or a have either a PUC APID OT 186 184 188 187 185 R N O M K
predicated on a duty not to deceive is not impliedly preempted by various FTC decisions); decisions); various FTC not impliedly preempted by deceive is not to duty predicated on a (9th 1218 541 F.3d 1214, Ass’n v. Lockyer, Am. Bankers states may pass laws to regulate through the PUC or the state consum interoperabilityfound by the NIST through developing and functionality privacy policies or standards PUCsformal standards, most state lack privacy laws generally do not addressrelated to the smart grid, and state privacy concerns related to the smart grid. laws may not be inconsistent with the federal unfairlaws may not be inconsistent with and deceptive trade practice laws that established the the Supreme Court FTC. However, has affirmed the authority safeguards that of states to establish privacy provide stronger consumer protections than federal laws. ability to regulate privacy concerns, legislation these must be passed or address NUSP- adequately to developed by states be regulations must consumer privacy concerns.
over tenover years. D 2011]T provisions of a California consumer protection law should be held valid even though other valid even though be held protection law should consumer California a provisions of provisions were preempted by federal law). settlement numerous from companies that havecompromised the financialmedical data security and/or of customers.
Federal Trade Act and listing examples of such cases going back to 1999). of such cases examples and listing Federal Trade Act actions suggest that the FTC has authority that the FTC actions suggest to regulate privacy violations withinoccurring NUSP-consumer interactio policy ofFTC’s current self-regulation, this authority would not protect consumersnecessarily from privacy violations it would because only provide consumersafter with recourse their privacy had been protection only the effect, In violated. difficult-to-measuredegree of protection resulting from the deterrent of suit byeffect that the threat the FTC would have on companies. authorityhave to regulate NUSP-consumerFTC may Accordingly, the However, it is likely privacy concerns. preventingbe inadequate for privacy violations under the current agency policy of self-regulation. separate consumer protection state privacy laws. agency enforce 9 n.17 (2010) OF C Y 30555_cdt_9-2 Sheet No. 118 Side A 08/09/2011 09:04:54 A 08/09/2011 118 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 118 Side B 08/09/2011 09:04:54 M K C Y PM
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Accordingly, Accordingly, this ONSUMER ONSUMER 189 privacy concerns. In . [Vol. 9 [Vol.. NUSP-C EGULATE EGULATE R HOULD HOULD J. L ON TECH. HIGH & TELECOMM. S ? NTITY NTITY E Part II.B.2. Part II.B.2. 6/21/2011 Concerns 1. PUC Regulation Is Not Ideal HICH HICH ELETE NTERACTIONS D . See supra . See A. The FERC Should Regulate NUSP-Consumer Cyber Security I While PUCs may have the most expertise for handling localized One strong argument for PUC regulation of NUSP-consumer cyber No government authority entity has NUSP- to adequately regulate OT 189 N O issues like NUSP-consumer interactions, PUCs are not the best entities to regulate NUSP-consumer cyber security concerns for several reasons: (1) PUC regulation only be achieved could by states individually passing legislation to create this not streamline authority, which would be possible due to preemptiongovernment function and may not and and (2) PUCDormant Commerce Clause concerns; regulation would such as piecemealinevitably lead to undesirable side-effects regulation and negative externalities between states. security concerns is that PUCs have the most expertise in handling localized interactions related to the electric grid, such as NUSP- consumer interactions. NUSP-consumer interactions are localized interactions, and PUCs likely have the most expertise in handling localized interactions via experience regulating the retail electricity consumer cyber security and the state although PUCs concerns, and ofanalogues the FTC authority have to regulate NUSP-consumer privacy concerns, very few are taking steps to do so. Part evaluates which government entities choices would be the optimal for regulating cyber NUSP-consumer security and making these determinations, the following factors are evaluated as crucial considerations: (1) areas of expertise within government entities, efficiency gains(2) ability to achieve from the streamlining of (e.g. speedgovernment functions in implementingregulation and reduction in regulatory complexity), likelihood of encountering and (3) undesirable government side-effects from giving a regulatory entity authority (e.g. piecemeal regulation and externalities). As such, Section potentialA considers each the FERC regulator in turn and explains why should be given authority to regulate NUSP-consumer cyber security concerns. Then, Section B considers each potential regulator in turn and also be given authority to regulate explains why the FERC should NUSP-consumer concerns. privacy
IV. W IV. D 562 30555_cdt_9-2 Sheet No. 118 Side B 08/09/2011 09:04:54 B 08/09/2011 118 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 119 Side A 08/09/2011 09:04:54
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563 state NUSPs, EVELOPMENT Chevron v. Natural D ty to regulate these C’s interpretation of This is problematic problematic is This state legislation that 193 RID RID G to NUSP-consumer cyber MART S argued that regulation by an argued that regulation to implement interoperability mocracy & the Elec. Frontier & Tech. states may not have the legal the have may not states statute if it were held that the the that were held if it statute in regulating NUSP-consumer in regulating FERC has interpreted to cover rden upon out-of- lation of these NUSP-consumer so regulate cyber securityconcerns , RM No. 08-12-009, at 21 (Mar. 9, 2010), No. 08-12-009, , RM ROVIDERS IN IN ROVIDERS Lastly, the state would need to be P 196 As a result, it is likely that the FERC’s Additionally, under on so that the authori 194 195 ERVICE S gation may preempt any ze this regulatory power. a state challenge to the FER TILITY TILITY -U ON Accordingly,be it can N 191 . art. VI, cl. 2. art. . which must be individuallymeans that new legislation Part III.A.2. III.A.2. Part notes 135-36 and accompanying text. and accompanying notes 135-36 OLE OF OF OLE Joint Comments of the Ctr. for De R Order InstitutingRule Making ONST
192 8/1/2011 C HE
http://www.cdt.org/files/pdfs/20100309_smartgrid_cpuc_comments.pdf (noting http://www.cdt.org/files/pdfs/20100309_smartgrid_cpuc_comments.pdf This argument This assumes and knowledge a PUC’s that Smart Grid Policy, 74 Fed. Reg. 37,098 & 37,101 (July 16, 2009). (July 16, 2009). 37,101 37,098 & 74 Fed. Reg. Smart Grid Policy, 190 ELETE D . See supra . See . See . See id. . See . See, e.g., See, . . See supra . See PUCs are poorly suitedPUCs are poorly to regulate NUSP-consumer cyber security OT 193 194 191 192 190 N O M K U.S. 195. available at at available for the California PUC to implement security that the ability tomeasures is restricted are not). NUSPs comment posits this “regulable entites” of which NUSP-consumer interactions. NUSP-consumer
Found., to the concerns because thestate statutesconcerns regulatory set outthat authority PUC do not currently authorize the regu interactions, interactions did not place undue bu careful in drafting its legislati Resources Defense Council statute’s language ambiguous. is interpretation of this dele the EISA could easily fail because a reviewing court would give the FERC the interpreting in deference substantial delegatesthe authority to PUCs al to under the SupremacyClause.
market. D 2011]T for multiple reasons. Most importantly importantly Most reasons. multiple for and functionality standards, which the authority to implementsuchlegislation. Congresshas already providedthe FERC with jurisdiction through the EISA passed by states to authori experience gatheredexperience regulating from intrastate retail utility-consumer an advantage translates to interactions interactions. This assumptioninteractions. may because experience be accurate have given is likely to localized interactions regulating the PUC the and know-how needed resources other localized effectively implement to includingregulations, related regulations security concerns. 196. (1984). U.S. 837, 843-44 467 Council, v. Natural Res. Def. Chevron, U.S.A. entity interactions is likely less familiar with localized to be less effective than regulation could result in delay. by a PUC. Less effective regulation in incomplete,It could also result and, consequently, ineffective implementation of regulation, lead to completely inadequate which could cyber security protection. is this argument is persuasive, it Although byheavily outweighed other considerations. C Y 30555_cdt_9-2 Sheet No. 119 Side A 08/09/2011 09:04:54 A 08/09/2011 119 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 119 Side B 08/09/2011 09:04:54 M K C Y
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46, 47. 46, 47.
197 201 EGULATION . [Vol. 9 [Vol.. n of the PUC to entities , 2004 R , 2004 ndividual states creating this regulate private businesses. Some d to create PUC authorityd to create over these and expertise that can be put towards en both states decide to regulate. In a such and statutory language that could and statutory language that Federalism and Federalism and Regulation 199 ng the Dormant Commerceng Dormant the Clause. J. L ON TECH. HIGH & TELECOMM. art I, § 8, cl. 3. I, § 8, cl. 3. art
. notes 148-50 and accompanying text. and accompanying notes 148-50 ONST 6/21/2011 Finally, extending the jurisdictio C
200 . ELETE D . Id . See supra . See Even assumingEven state legislation that could be it and upheld, passed Besides the larger issues already addressed, there are also a variety of OT 200 201 N O unintentionally impede the flexibility PUC’s regulatory if drafted too narrowly. 198. et al., Robert W. Hahn states might consider this to be an overreaching of regulatory authority of regulatoryan overreaching this to be states might consider because PUCs conventionally regulate only public utilities. that are not public utilities is a step thatthat are not public utilities is a step states may be unwillingto take because states may feel that extending jurisdiction to regulate NUSPs is too much like extending jurisdiction to 197. U.S. 197. therebypotentially violati D 564 practical problems that could result from i regulatory authority the slow speed of the for PUCs. These include legislative process, difficulties process’s with party politics, the legislative vulnerability to lobbying (which could result in watered-down or ineffective legislation), 199. Ctr. for Envtl. &Former Senior Policy Analyst, Email from Elias Leake Quinn, on Journal the file with (on 2010) 10, author (Jan. Sch., to Law Colo. of Sec., Univ. Energy Law). Technology Telecommunications and High situation itis still possible, two and likely, that the states will have different amounts of resources whichregulatingtheseinteractions, may create the same externalities. is undesirable interactionsto regulate these for states because PUC may cause detrimentalregulation side-effects. PUCs For instance, if were over NUSP-consumer authority given regulatory cyber security concerns, be a risk of creatingthere would piecemeal system a This of regulation. ifcould result all not states decide states didconcerns, or if all create this authority but did so at different times or to varying degrees. In such a situation, a piecemeal of system because piecemeal be created. This is problematic regulation would regulation of cyber security could lead to negative externalities between electricstates using an interconnected grid. the decision In other words, NUSP-consumerof one state to regulate cyber security could be concerns undermined by the decision regulation. of another state to forego such via a security breach occurringThis could result without in the state regulation, which negatively affects the state with regulation due to the nature electric grid. This scenario is particularly of an interconnected relevant to cyber securityto breach issues because a person seeking security will invariably seek out the easiest way to do so. Moreover, these issues do not disappear wh
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Proposed 1 (May 11, 1 (May 565
Instead of 206 EVELOPMENT D RID RID G Ultimately, however, the however, the Ultimately, MART 202 note 53, at 2. 53, at 2. note note 53, at 4. 53, at 4. note S to regulate NUSP-consumer methods to help utilities assessmethods to help supra supra electric regulation outside of the , , regulation. Further, the DOE may regulation. Further, ROVIDERS IN IN ROVIDERS available at available P note 60, at 2. 60, at 2. note thods between energy control systemsthods between energy supra ERVICE
This experience includes: identifying cyber This experience includes: , S 203 However, despite this expertise, it would be , in Smart Grid Policy, Dkt. No. PL09-4-000, at TILITY TILITY 205 NERGY -U E This expertise was the reason that the NIST was ON e jurisdictional issues that must be resolved to proceed effectively).e jurisdictional issues that N 204 T OF T OF ’ EP OLE OF OF OLE D
, Comments of the Nat’l Ass’n of Regulatory Util. Comm’rs, to the Util. Comm’rs, of Regulatory Ass’n of the Nat’l Comments , R 6/21/2011 2. Ideal Not Is Regulation DOE HE U.S.
ELETE D . See . See, e.g. . See, . and Technologies Grid Initiatives See Smart . and Technologies Grid Initiatives See Smart . Id. The DOE has extensive experience standards developing security Giving the DOE the power The DOE has significant technical has significant The DOE regarding expertise cyber OT 203 206 202 205 204 N O M K Policy Statement & Action Plan & Action Policy Statement 2009), 2009), http://www.naruc.org/Testimony/09%200511_NARUC%20Comments%20on%20FERC%20 Policy that the FERC’s Smart Grid (noting DRAFT%20POLICY%20STATEMENT.pdf rais Statement’s assertions
not want to assume this regulatory responsibility. for energy control systems. DOE should to regulate NUSP-consumer be given authority not cyber becausesecurity concerns (1) this would unnecessarily complicate the electric regulatory (2) the DOE’s technical expertise framework, and for assistingwould be better used in required to collaborate with the DOE interoperability in creating and functionality standards.
D 2011]T undesirable to give the DOE authority to regulate NUSP-consumer cyber security concerns because this would further complicate the electric regulatory framework—something that desperately needs to be streamlined for the smart grid. interactions would create a new facet to traditional FERC-PUC regulatory scheme and the new interoperability and functionality authority of the FERC. This facet would unnecessarily resultantcomplicate regulation because the regulatory framework would require the FERC to adopt security standards, but would then charge the DOE with the responsibility to enforce them. This could cause jurisdictional blurring down the road, which, as this Note illustrates, creates uncertainty and can impede regulatory action.
vulnerabilities in energy control systems, workingvulnerabilities in with vendors to systemsdevelop hardened that mitigate cyber security risks, developing more secure communicationme and field devices, developingand field devices, tools and their security posture, and providing extensive cyber security training for energy owners and operators to help them prevent, detect, and mitigate cyber penetration. security issues, it has some responsibility to regulate smart grid to regulate responsibility issues, it has some security development,and it is involved with NIST in creating smart grid interoperability functionality and standards. C Y 30555_cdt_9-2 Sheet No. 120 Side A 08/09/2011 09:04:54 A 08/09/2011 120 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 120 Side B 08/09/2011 09:04:54 M K C Y PM
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Cong. 15-16 Cong.
, 111th Nowhere in those Nowhere in those 207 addressing cyber security . [Vol. 9 [Vol.. or delegation of additional ery System to a Smart Grid: Hearing Hearing Grid: Smart to a System ery e Assistant Secretary for thee Assistant Secretary Office gridfrom these concerns, but the H. Comm on Sci. & Tech. Sci. H. Comm on an adviser FERC on technical to the
ctive implementationof cyber security standards.
J. L ON TECH. HIGH & TELECOMM. 208 6/21/2011 3. FCC Regulation Is Not Ideal 4. DHS Regulation Is Not Ideal . ELETE D . Id . See Effectively Transforming Our Electric Deliv Electric . Our Transforming See Effectively Lastly, it is possible that to regulate NUSP- the DOE may not want Like the DOE and the DHS (as discussed below),Like the DOE and the DHS (as the FCC has for Although the DHS has some responsibility OT 208 207 N O (2009) (statement of Patricia Hoffman, Acting Assistant Secretary, Office of Electricity of Electricity Secretary, Office Assistant Acting Hoffman, of Patricia (statement (2009) of Energy). Reliability, Dep’t. Delivery and Energy recommendations were calls for legislation authority to the DOE. the Env’t of the Subcomm. on Energy & Before cyber security of NUSP-consumer during regulation that may arise issues cyber security concerns. Under this scenario still be able the DOE would to offer its expertise to secure the creating confusion,creating uncertainty, regulation, complicating and be it would vastly morebeneficial authority regulatory streamline to and boundariesjurisdictional (especially regulatory already confusing for the of smart gridlandscape development). a more preferablePerhaps role for would be one similarthe DOE for the NIST that which it occupies to the DOE couldstandards: serve as regulatory framework would not become more complicated. D 566 consumer cyber security concerns. Th of Electricity Reliability Delivery and Energy at the DOE has testified Subcommittee on Energy and Environmentbefore the House regarding the DOE’s “recommended for dealing with security courses of action” with smart gridissues associated development. agency expertise that may be helpful in regulating NUSP-consumeragency expertise that may be helpful cyber security the concerns. However, has no experience regulating FCC the electric grid. Consequently, it is counterintuitive and out-of-place to these concerns because theput it in charge of regulating FCC’s involvement in regulating the grid would lead to increased regulatory complexity and decreased efficiency. Although the FCC may play a role in assisting the more traditional regulatory players via its NBP and not be the optimalARRA authority, choice the FCC would for regulating NUSP-consumer cyber security concerns. concerns, it is not the proper entity to regulate these interactions because the DHS has expertise in aiding other agencies security concerns with cyber but no experience in implementing cyber security standards. As a result, DHS regulation could lead to ineffe 30555_cdt_9-2 Sheet No. 120 Side B 08/09/2011 09:04:54 B 08/09/2011 120 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 121 Side A 08/09/2011 09:04:54 PM
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567 Of the federal Of the As a result, the d to addressing the role d to addressing EVELOPMENT D 210 RID RID avoid preemption and G cyber security concerns, the note 8 (select links under “Quick “Quick links under (select 8 note MART note 53, at 4; Smart Grid Policy, 74 Grid Policy, 74 53, at 4; Smart note S supra , testimonies dedicate testimonies already has experience developing ROVIDERS IN IN ROVIDERS aiding their to develop agencies own P r cyber security concerns. streamlined regulation of the smart grid, Smart Grid Smart ERVICE Accordingly, federal regulation is more S TILITY TILITY the role of the DHS in DHS role of the the security cyber developing -U 209 ON N Part III.A.5. III.A.5. Part OLE OF OF OLE R 6/21/2011 5. Is Optimal FERC Regulation (3) the FERC has expertise in implementing and enforcing HE Smart Grid Initiatives and Technologies, supra and Technologies, Smart Grid Initiatives
ELETE
211 D . See . See supra . See The FERC should regulate NUSP-consumerThe FERC should cyber security As noted above, As noted As noted above, leaving the regulation of NUSP-consumer cyber OT 210 209 N O M K of the FERC and its involvement in the interoperability and functionality standards, including including and functionality standards, its involvement in the interoperability of the FERC and their cyber security standardsaspect. Fed. Reg. 37,098 (July 16, 2009). (July 16, 2009). Fed. Reg. 37,098 congressional 211. and documents other policy various grid webpage, a smart grid policy statement, and For example, the smart FERC has a
concerns because (1) federal regulation would piecemeal regulation issues related to state regulation, (2) FERC regulation would contribute to efficient and perhaps more effectivewhich would in turn lead to more regulation, via its EPAct of 2005 reliability regulatory standards on the grid authority, be the and (4) FERC regulation would simplest option, requiring the passage of minimal legislation or reinterpretation of the standards authority underFERC’s interoperability and functionality the EISA. standards has largely been largely has standards one of standards rather than controllingstandards implementationthe creation and of traditional because this This is significant standards. function likely agency the DHS has significant means that expertise helping agencies in to implement types of standards decide what actual expertise but no in implementing standards itself. such Thus, likely require the DHS would more time obtain to the necessary personnel to adequately regulate NUSP-consumer cyber security concerns than other agencies that already have staffs with experience. such regulatory Consequently, for efficiency and efficacy to give reasons, it is beneficial authority to regulate NUSP- consumer cyber security entity that can assume concerns to a government this responsibility effort. with less Links”). Links”).
D 2011]T FERC has personnel and resources already allocated to this area, additional authorityallowing the agency to assume this with minimal effort. FERC is the best suited because it FERC is the best suited because security concerns to states may not be possible and, if possible, may result security concerns to states may not in ineffective regulation. appropriate for NUSP-consume entities that could regulate NUSP-consumer cyber securityconcerns. standards to address these C Y 30555_cdt_9-2 Sheet No. 121 Side A 08/09/2011 09:04:54 A 08/09/2011 121 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 121 Side B 08/09/2011 09:04:54 M K
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ERV OV AND S , 1:40 G
OWER Lastly, P 213 The value of ESEARCH ESEARCH NITIATIVES I R 212 UCLEAR
TREAMLINE TREAMLINE . S N the regulation of general of the regulation ONG RANCH RANCH B . [Vol. 9 [Vol.. , C SHIP TO SHIP TO (2004) (describing streamlining of streamlining (describing (2004) UTURE OF P’ desirable because it can lead F ating authority in the FERC in the FERC ating authority L OLLINS ’ R AT XECUTIVE HICAGO regulate NUSP-consumer cyber E C
, N , OHN decisions. Second, because regulated Second, decisions. J CONOMIC CONOMIC
E of streamlining efforts in efforts in streamlining of & HE HE See, e.g.
, T EGISLATION NIVERSITY OF L U and regulatory certainty. For instance, streamlining efforts streamlining regulatory certainty. For instance, and J. L ON TECH. HIGH & TELECOMM. HEOHARY HEOHARY NERGY T 7 (2009). her agencies. Concentr her agencies. E
Thus, extending the FERC’s jurisdiction to regulate A. 214 URRENT URRENT T OF C ’
: ONGRESS EP C 6/21/2011 . at 7-8. . at 7-8. ATHERINE ATHERINE ONDUCTED AT THE AT THE ONDUCTED ELETE C D . Id Finally, allowing the FERC to Furthermore, streamlining of federal regulation will reduce of federal regulation Furthermore, streamlining DecidingFERC to the this authority delegate to also would OT 214 N PTIONS FOR FOR PTIONS YBERSECURITY O TUDY generally and for nuclear power. complexity and confusion in the regulatorycomplexity and confusion framework. streamlining can increase regulatory efficiency by helping to avoid byvulnerabilities in regulation caused regulations from inconsistent multiple agencies. this effect has been noted implicitly by the statements of cyber security “lack of transparency and dearth the current caution about experts, who of defined departmental roles and responsibilities in addressing cyber- related issues from a comprehensive national approach.” NUSP-consumer cyber security concerns is to increased regulatory efficiency and efficacy. security concerns would require less effort than creating a new authority for a different federal agency. To allow to regulate these the FERC passage of minimalconcerns would either require the legislation extending the FERC’s current interoperabilityand functionality standards authority under the EISA, or it would require the FERC to S C O achieve regulatory to when trying pursued is commonly streamlining Regulatory 212. efficiency, cost-effectiveness, pursued by U.S. federal agencies include streamlining of the regulation of construction, both both of construction, of the regulation federal agencies include streamlining U.S. pursued by D 568 the nuclear power permitting process). http://www.natlpartnerstreamline.org (last visited Feb. 11, 2011) (noting enormous cost (noting enormous cost 2011) Feb. 11, (last visited http://www.natlpartnerstreamline.org as a result efficiency increased and savings construction); D construction);
entities know more quickly with greater and certainty which regulators have authority, regulated entities, and with too, can act more quickly greater faith that they will not face unanticipated regulatory requirements. would be beneficial because it would streamline beneficial because would be the regulation of federal smart grid, creating thus clearer and, subsequently, departmental roles, increasedefficiencyregulatory happen This may and effectiveness. clearer departmentalbecause reduce roles uncertaintywhich as to is beneficial will regulate. And this, in turn, government agency for several reasons. First,it reduces the need for regulators to make difficult jurisdictional and time-consuming concentrate regulatory authority in the authority regulatory concentrate instead FERC of unnecessarily ot it among dividing 213. C 213. 30555_cdt_9-2 Sheet No. 121 Side B 08/09/2011 09:04:54 B 08/09/2011 121 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 122 Side A 08/09/2011 09:04:54 , N ’ PM
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OMM C
569 . EG R EVELOPMENT D ther allow their PUCs to NERGY NERGY E RID RID
. G joys this authority already ED F MART note 53, at 2; Smart Grid Policy, 74 Grid Policy, 74 Smart note 53, at 2;
S to mandate and enforce the U.S. supra , These options These aresimpler to the FERC is best regulate suited to 215 ROVIDERS IN IN ROVIDERS states would need to ei states P 217 of the FERC, the Federal Power Commission, in ERVICE S to take on that responsibility. responsibility. to take on that TILITY TILITY -U For instance, although factors contribute numerous ON N 216 OLE OF OF OLE R 6/21/2011 Expertise translates because into a better ability to regulate HE 218 ELETE D . Technologies and Initiatives Grid See Smart FERC?, is What Corner, Students’ See . B. FERC Should Regulate NUSP-Consumer The Privacy Concerns Although the are the traditional FTC and its state analogues The FERC has decades of experience regulating the electric grid, OT 215 218 N O M K government agencies with jurisdiction over consumerwithjurisdiction protection, government agencies and although these entities NUSP-consumer and PUCs may regulate privacy concerns after taking certain steps, to the difficulty in passingto the difficulty it legislation, extending the is arguable that authorityregulatory that nearly of an agency en is easier to achieve than obtainingis easier to consensus that a bill should be passed inless regulatory authority an agency with to allow to have that area Thus, for the foregoingwholly new powers. reasons, the FERC is the optimal regulation choice for of NUSP-consumer cyber security concerns. accomplish than passing legislation passing than accomplish to create an entirely for function new agency.a different Fed. Reg. 37,098 & 37,101 (July 16, 2009). 2009). 16, & 37,101 (July Fed. Reg. 37,098 lower when legislation feasibility is with a that political assumes argument This 216. is needed. to a narrow, purpose as compared broad, 217. to actively regulate these concerns, and the of self-regulation its policy would need to change the FTC III.B.3, noted in Part As the allowing concerns or pass legislation privacy to control NUSP-consumer enact regulations state’s consumer protection agencies
reinterpret this existing this reinterpret authority. D 2011]T these concerns. FERC regulation is the optimal choice because (1) the FERC has more experience grid regulating the electric than the FTC or state analogues, (2) the FERC has mandating and enforcingexperience standards from its reliability authority, (3) PUCs are likely to encounter piecemeal regulation issues, (4) allocating and regulatory authority to the of the smart grid. Thus, either FERC will streamline federal regulation interoperabilitythe FERC should reinterpret its and functionality standards authority to include the authority privacy standards for the smart grid being developed by the NIST, or federal passed legislation should be to give the FERC this authority. whereas the FTC and its state analogues have no experience regulating the grid. http://www.ferc.gov/students/whatisferc/history.htm (explaining that FERC regulation dates (explaining that http://www.ferc.gov/students/whatisferc/history.htm agencies with expertise better understand what manner regulation of works best. In addition, agencies with expertise need to do not familiarize allowing them to themselves with an area of regulation, thanimplement regulation more quickly agencies with less expertise. back to the formation of the predecessor Feb. 11, 2011). 1920) (last visited C Y 30555_cdt_9-2 Sheet No. 122 Side A 08/09/2011 09:04:54 A 08/09/2011 122 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 122 Side B 08/09/2011 09:04:54 M K
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OMM C smart grid.
, EG R regulate these privacy . [Vol. 9 [Vol.. NERGY NERGY E hallmark of the
. ED F rability standards and functionality the FERC authority to regulatethe FERC NUSP-
, deciding how to best J. L ON TECH. HIGH & TELECOMM. 6/21/2011 ELETE D . Office of Enforcement of Office . It is also preferableIt is also to give Lastly, in the same vein as the analysiscyberLastly,as securityin of same vein the regulation, The FERC is a preferable entity for regulating NUSP-consumer OT 219 N O it is prudent to consider how authorities tangential are allocated when deciding how to delegate regulatory authority over privacy concerns. The FERC is the optimal choice for regulating NUSP-consumer cyber security concerns via its interope authority. However, the interoperability and functionality authority extends to privacy concerns as well. Accordingly, it may be disadvantageous to allow the FERC to regulate the cyber security aspects of NUSP-consumer interactions, but to not regulate these interactions’ privacy aspects. For example, a decision to aggregate or streamline Experience enforcing standards makes the FERC a strong candidate for the FERC standards makes Experience enforcing similar regulatory authority the because simply adjust its FERC could standards. practices to include these additional current enforcement or itsHowever, the FTC difficultystate analogues might have more adjusting to a regulatory role that they fulfilling. are less familiar with updated Feb. 25, 2011). (last http://www.ferc.gov/about/offices/oe.asp Because the smart grid the Because developing and is complex is effective quickly, timelyand is crucial. regulation the FERC that one reason Thus, a is better choice state the FTC or its than for regulating analogues NUSP- consumer privacy concerns to keep to be better able is that it is likely pace with smart grid development. D 570 consumer privacy analogues FTC or its state rather than the concerns has related experienceenforcing because the FERC and mandating EPAct of 2005. reliability authority under the standards from its concerns, it is better to err on the side of caution and avoid piecemeal regulation. This maythe interconnected be preferable due to nature of the the grid and networks that are Additionally, in consideration of the rapid speed of smart grid technology development, it is likely sensible more to seek uniform regulation and avoid needing to re-delegate authority at a later time due to a later-found shortcoming of piecemeal regulation. privacy concerns because in exercising this authority, a the FERC acts as runsingle entity and therefore will not into piecemeal regulation issues. Piecemeal regulation is particularly problematic unified policy is when needed for effective regulation. In the case of cyber security, this is a paramount concern because cyberof the grid security is dependent upon effective regulation the entire of grid. It is unclear whether or not of NUSP-consumertheprivacypiecemeal regulation concerns presents same degree of danger to the privacy of all users of the grid. However, advises that in sense common 30555_cdt_9-2 Sheet No. 122 Side B 08/09/2011 09:04:54 B 08/09/2011 122 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 123 Side A 08/09/2011 09:04:54 PM
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571 EVELOPMENT D RID RID G terest streamlining the of MART S ROVIDERS IN IN ROVIDERS P ERVICE S TILITY TILITY -U ON N
OLE OF OF OLE R 6/21/2011 HE ELETE D NUSP-consumer interactions the pose a danger to the security of OT N ONCLUSION O M K federal government regulation the smart grid,of this authority should be delegated to the FERC. C regulatory authorityregulatory overgrid smart the divide than to rather among it agenciesmultiple by reducing efficiency increase might regulatory complexity. Complexity not only makes entitiesit difficult for regulated to understand authorities what theyit it also makes report to, but for regulators difficult regulatoryto act because actions will require difficult jurisdictional decisions. in the in Thus, D 2011]T electric grid and to theno interests of its users. Because privacy currentlygovernment entity to effectively regulate these has the authority interactions, regulatory authority to cover must be extended them. The attractive candidate to assumeFERC is the most this authority it because power to promulgate non-compulsoryalready has the standards for NUSP-consumer cyber security and privacy concerns under its interoperability and functionality authority. standards Accordingly, either interoperabilitythe FERC should reinterpret its and functionality standard authority to encompass the ability to mandate or enforce the NIST’s cyber security and privacy standards, or legislation should be passed to extend this authority to the FERC. Failing to address these continued ineffectual regulationconcerns will likely result in the of NUSP-consumer interactions. Such ineffectual regulation could potentially result in the invasion of consumer privacy interests or the endangerment of the electric grid—things that unarguably should be avoided. C Y 30555_cdt_9-2 Sheet No. 123 Side A 08/09/2011 09:04:54 A 08/09/2011 123 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 123 Side B 08/09/2011 09:04:54 M K C Y 30555_cdt_9-2 Sheet No. 123 Side B 08/09/2011 09:04:54 B 08/09/2011 123 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 124 Side A 08/09/2011 09:04:54 PM PM
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V 2008 ...... 583 2008 ...... A RESEARCH REVOLUTION: REVOLUTION: A RESEARCH 8/1/2011 1. Direct-to-Consumer Genetic Testing Companies ...... 585 1...... Direct-to-Consumer Genetic Testing Companies 588 ...... Non-Profit Research Consortiums 2. 2. State Laws ...... 584 2...... StateLaws 1. The Genetic Information Nondis Companies 1. 578 ...... Sequencing the HumanGenome 579 2...... Direct-to-ConsumerGenetic Testing 1. Historical Examples of Abuse ...... 575 1...... Historical Examples of Abuse 576 2...... Current Laws 1. Reidentification: The Loss of Anonymity ...... 590 1...... Reidentification: The Loss of Anonymity 2. Informed Consent 3. 593 ...... Genetic Discrimination RIVACY ELETE ONLINE A. Privacy Concerns RESEARCH HUMAN GENETIC B. Privacy Policies, and Informed Terms of Service, Consent BACKGROUND A. States Subject Research in the United Regulation of Human B. Non-Profit Research Consortiums A. Research Arms of Direct-to-Consumer Genetic Testing A. Relevant Legislation P B. Genome Human and Testing Sequencing B. Public Benefit: Promoting, Not Impeding, Genetic Research C. Balancing Concerns D
* J.D., University of Colorado Law School (2011); Law School * J.D., University of Colorado M.S., Colorado State University OT RESEARCH (AND PRIVACY) GUINEA PIGS PRIVACY) (AND RESEARCH
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O M K IV. INTRODUCTIO I. III. D II. (2007). (2007). C Y 30555_cdt_9-2 Sheet No. 124 Side A 08/09/2011 09:04:54 A 08/09/2011 124 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 124 Side B 08/09/2011 09:04:54 M K C Y PM PM
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. [Vol. 9 [Vol.. heir information and its in research) is undesirable der to meet the demands of the experiments humans, not only on update existing protections for ...... 603 ...... 596 ...... 601 mmon Rule ...... 598 ...... mmon Rule ...... 597 ...... ONS ...... 596 or loss of control of t rapid developments in the fields of genetics and J. L ON TECH. HIGH & TELECOMM. Nondiscrimination Act 597 ...... ON ...... 605 ON ...... 8/1/2011 1. the Genetic Expansion of Information 2. Co Revising the 1. 601 ...... Stewardships 2. 602 Certificates...... ofConfidentiality ELETE C. Approaches Protective D. Consent Interactive Informed B. Legislative Reform RECOMMENDATI A. Addressing Reidentifiability D Advances in human science and medicine are often dependent upon Direct-to-consumer genetic which offer DNA testing companies, OT N
O in the oft-cited Nazi Germany, but also in the United States, lead to regulations on human subject research and protections for the participants. Since then, genomics along with the rise of an Internet society have greatly expanded rapidly advancing online research community, specifically open and via interactive informed consent. I. BACKGROUND research on human subjects. Shameful CONCLUSI INTRODUCTION sequencing services to paying customers, and publicly-funded genetic research consortiums have both begun to conductInternet-based genetic privacy and anonymityvarylevels of The offered studies. research greatly, but even those entities that promise maximum privacy protection can no longer guarantee much, as investigators recently revealed how easy it is to identify a given individual from “anonymized” data. Prohibiting is unlikely these reidentificationto be effective, but events prohibition on the opposite end (participation community,because individuals, the research and the public at large benefit from scientific and medical discoveries achieved through research. And yet, if study participants fear the consequences participation, of such as genetic discrimination dissemination (e.g. being identified as a Huntington’s disease carrier anyone),when you had chosen not to tell participation will decrease. in computer science that Because we cannot stop the advancements enable reidentification, it is time to traditional human research subjects in or V. D 574 30555_cdt_9-2 Sheet No. 124 Side B 08/09/2011 09:04:54 B 08/09/2011 124 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 125 Side A 08/09/2011 09:04:54
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The The 5 Infectious Hepatitis: Hepatitis: Infectious Researchers XPERIMENT 6 E YPHILIS S 575 Instead, they were receiving Instead, they were can take place. This section This take place. can 2 USKEGEE EVOLUTION T R meals, and a burial stipend for Experiments at the Willowbrook State School Experiments at the Willowbrook HE The Tuskegee Study involved 399 The Tuskegee 1 : T ESEARCH Opponents denounced using children in R
9 The investigators justified their work by The investigators justified their 7 LOOD
B 4 note 5, at 366. AD , B supra Saul Krugman, Joan P. Giles & Jack Hammond, P. Giles & Jack Krugman, Joan Saul ONES They also obtained consent for the artificial induction 8 H. J 8/1/2011 1. Historical Examples of Abuse 1. Historical Examples at 366. at 366. at 13-14. at 5-6. at 4. at 4.
AMES ELETE 966, 966-67 (1971). (1971). 966-67 966, D . Id. . See generally . See . Id. . Id. . Id. . Id. A. Regulation of Human Subject Research in the of Human Subject A. Regulation States United In July of 1972, an AssociatedIn July of 1972, an broke Press journalist the story of a Not long before the Tuskegee story broke, researchers in New York 7 5 6 4 2 3 OT N O ANCET M K 8. Saul Krugman, Letter to the Editor, L United States Public Health Service study, then in its fortieth year, on Health Service study, then in United States Public syphilis. the effects of untreated Types of Infection Immunological and Epidemiological, Clinical, Distinctive Two Evidence for about hepatitis at Willowbrook and information (providing background (1967) JAMA 365 describing several of the studies). syphilitic African American men in rural who Macon County, Alabama apparently didthey had not know syphilis or knew, but did not know they were not receiving treatment for it. & expanded ed. 1993). & expanded ed. 1993).
It appeared that government researchers had taken advantage of poor, illiterate men by misleading them into believingthey were receiving proper medical attention. from the residents’ parents. 9. Krugman et al., 1. J 1. provides background some research on human subject and its regulation, sequencing and on genetic online. and its availability the breadth of topics on which human subject research can be conducted be conducted can subject research human which topics on of the breadth the forumsand in that research which D 2011]A intentionally infected some of the childrenintentionally infected some of the in order to study controlled progression of the disease. free medical examinations, hot participation in a study in run its which researchers simply let syphilis course in investigate order to the ultimately fatal effects of the disease. study subjects were residents of Willowbrook State School, a now- study subjects were residents of defunct institution children. for mentally challenged pointing out that viral hepatitis was endemic in the institution, and deliberate infection conferred immunity with a mild strain against more virulent strains. completed a decade-long study on the effects of viral hepatitis. C Y 30555_cdt_9-2 Sheet No. 125 Side A 08/09/2011 09:04:54 A 08/09/2011 125 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 125 Side B 08/09/2011 09:04:54 M K
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but UMAN . 14 5:25 ANCET (1979), (1979),
H Id IOMEDICAL IOMEDICAL HE Organization Organization B EPORT , 297 L T R
, reprinted in reprinted They also argued also argued They ELMONT 10 UBJECTS OF UBJECTS OF ESEARCH The Nuremberg Code (1947) The Nuremberg Code B S R . [Vol. 9 [Vol.. the House of Delegates of the Delegates of the of the House HE T
, UMAN H research directors failed to see research directors existed for several decades, FFICE OF EALTH The Willowbrook Experiments The Willowbrook s [that] must be observed in order to satisfy satisfy in order to be observed must s [that] Experiments at the Willowbrook State School the Willowbrook at Experiments O H 70, 70-71 (7th ed. 2008) (reprinting the 2008) (reprinting 70-71 (7th ed. 70,
., OF 11 . 1 (2001). The predecessor to the U.S. Department 1 (2001). ERVS S NSTS ROTECTION OF ROTECTION I IOETHICS P L B ’ YSTEM n Subjects, more often referred to as then Subjects, more often referred of human medical experiments). of human medical S AT N J. L ON TECH. HIGH & TELECOMM.
, EVIEW OMPLIANCE N FOR THE N FOR THE SSUES IN IN SSUES ’ which eventually lead, in 1991, to the Federal Policy which eventually lead, in 1991, to R I C but at least one of the but at least one 16 note 1, at 12. 12. 1, at note
1075, 1090 (1946). (1946). 1090 1075, 12 17
ESEARCH Recommendations regarding the ethical of treatment OMM R , Minutes of the Supplemental Session of Supplemental of the , Minutes supra 13 C , 8/1/2011 L 2. Current Laws ’ e.g. 749 (1971). (1971). 749 ESEARCH ESEARCH , at 179-80 (referring to interview with Dr. John R. Heller, at 179-80 (referring to interview with Dr. John director of the Division http://ohsr.od.nih.gov/guidelines/belmont.html. R AT ESEARCH ESEARCH ONES ELETE which was enacted after Tuskegee which was enacted and Willowbrook. Years of D . Id. . See 15 The Common Rule mandates that researchers at any public or Public outrage over studies such as those at Tuskegee and over studiesPublic outrage those at Tuskegee and such as ANCET ONTEMPORARY ONTEMPORARY OT 13 14 EHAVIORAL EHAVIORAL N B
C O UBJECTS of Venereal Diseases from 1943-48); Nuremberg Medical Trial, of Venereal Diseases from 1943-48); American Medical Association, Held in Chicago, Dec. 9-11, 1946, 1946, Dec. 9-11, in Chicago, Held Association, American Medical Section, 132 JAMA there was almost no federal oversight National until the Research Act of 1974, for Protection of Huma Common Rule. 12. J 1181 (1971). 12. 297 L S & 10. Letter to the Editor, Stephen Goldby, medical especially research, mentally the impaired. D 576 discussions following the 1974 Act werediscussions following the 1974 Act in the influential memorialized Belmont Report, 16. N 16. any similarityabuses or any applicability to Nazi of the Nuremberg Code to his work.
of Health and Human Services, the Department of Health, Education, and Welfare, had of Health, Education, the Department of Health and Human Services, earlier, in 1971. three years just of human subjects protection on the issued guidelines in available at available scattered sections of C.F.R.). 1991) (codified in 17. 18, 56 Fed. Reg. 28,003 (June Federal Policy for the Protection of Human Subjects, Nuremberg Code, which lists ten “basic principle ten “basic which lists Nuremberg Code, moral, ethical and legal concepts” private institution (hospital, clinic, laboratory, etc.) that receives (hospital, clinic, laboratory, institution private regulatedgovernment funding or is otherwise by the government first human subjects in researchhuman subjects in had actually that consentthat coercedwas in effect the main when because unitof the institution refused to accept new patients (due to alleged overcrowding), reserved for research unit, the separate study participants continued only, to welcomeresidents; only avenue for thus, the admittance was participation hepatitis study. in the 15. R 15. 11. Letter to the Editor, M.H. Pappworth, Willowbrook drew some unfavorable of comparisons to the experiments Nazi Germany, 30555_cdt_9-2 Sheet No. 125 Side B 08/09/2011 09:04:54 B 08/09/2011 125 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 126 Side A 08/09/2011 09:04:54
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21 Approval comes comes Approval
18 26 The members must 19 Requisite criteria for an Requisite 577 22 if the subjects cannot be one community member,one community at nd modification of,nd modification or deny a linked to the subjects.” pharmaceutical companies not otherwise fall under federal EVOLUTION voluntary and that the subject may R ESEARCH R
Additionally, a statement describing the extent 24 Proper informed consent Proper informed includes a description of 23 IRB approval is also not required when the research 28 This means that private ; 21 C.F.R. §§ 56.101-.115 (2010). (2010). §§ 56.101-.115 C.F.R. 21 ; § 46.101. § 46.101. 8/1/2011 27 The existence of adequate provisions for protecting the 25 § 46.111(a)(7). § 46.111(a)(7). § 46.116(a)(5). § 46.116(a)(5). § 46.116(a). § 46.116(a). § 46.109(a). § 46.109(a). § 46.111(a). § 46.111(a). § 46.107(e). § 46.107(e). § 46.107(a). § 46.107(a). § 46.107(a), (c). (c). § 46.107(a), ELETE D . See id. . See . See id. . See . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. IRBs are not required at institutions that do not receive any federal IRBs can decide to approve, dema
OT 28 27 26 25 24 22 23 21 20 19 N O M K 29. (2010). § 46.101(b)(4) 45 C.F.R.
least one person whose primaryleast one one and at least concerns are scientific, are nonscientific. primary concerns person whose from a local Institutionalfrom five of at least a group (“IRB”), Board Review diversepeople of backgrounds,including approvable proposal includeapprovable proposal to the subjects are the following: risks minimized,subjects are risks to the reasonable in relation to the anticipated of subjects benefits, selection is equitable,and informed consent is obtained. risks to the subject, identificationrisks to the subject, of benefits or to others, to the subject participationand a statement that is withdraw at any time. No member may review his or her own proposal. research subject to IRB the Food and approval because a government agency, Drug Administration (“FDA”), regulates the product of their research— pharmaceuticals. have expertise review to projects,specific research must know the practice. of professional know the standards law, and must applicable of confidentiality of records identifying the participant must beof confidentiality of records identifying included. 18. 45 (2010). C.F.R. § 46.101(a) seek approvalseek involving for studies human subjects. D 2011]A funding and whose research does funding and whose research does regulation. project (even if it is federally funded) is limited to the collection of existingpublicly available, data that is or identified “directly or through identifiers privacy of subjects of data is one of the and maintaining confidentiality proposals. criteria IRBs consider when they evaluate research proposal involving human subjects. research proposal C Y 30555_cdt_9-2 Sheet No. 126 Side A 08/09/2011 09:04:54 A 08/09/2011 126 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 126 Side B 08/09/2011 09:04:54 M K
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, 5 PL , 5 36 note 34, at 285- The Sequence of the the of The Sequence supra
, 33 286 (2007). ENTER . [Vol. 9 [Vol.. IFE L Initial Sequencing and Analysis of the and Analysis Sequencing Initial However, this prohibition However, Y 31 : M ENOME The groups jointly The announced their HIPAA prohibits HIPAA covered entities— 34 G 30 Y The Human Genome Project: Past, Present, and Future and Present, Past, Project: Genome The Human note 35, at 865-66; V : M §§ 164.502(d)(2), 164.514(b)(1). 164.514(b)(1). §§ 164.502(d)(2), supra Id. 860, 875 (2001); J. Craig Venter et al., 875 (2001); J. 860, 1304, 1315 (2001). 1315 (2001). 1304, J. L ON TECH. HIGH & TELECOMM. The of Diploid Genome Sequence an Human Individual ECODED Additionally, no patient consent is required for the D ATURE 32 CIENCE IFE James D. Watson, , A L , 409 N , 291 S 8/1/2011 1. Sequencing Genome the Human 44, 45 (1990) (explaining the project, including that all 22 autosomes plus the X the X the project, including that all 22 autosomes plus 45 (1990) (explaining 44, § 164.512(i)(1)(i). § 164.512(i)(1)(i). 2113, 2114 (2007) (identifying J. Craig Venter as the single DNA donor). The first Venter as the single DNA donor). J. Craig 2114 (2007) (identifying 2113, ENTER ELETE D . See generally . See . Id. V B. Human Genome Sequencing and Testing During the 1990s, the publicly-funded Human Genome Project During the 1990s, the publicly-funded Another relevant law is the Health Information is the law relevant Another Portability and CIENCE OT 34 33 N RAIG O IOLOGY Human Genome does not apply to “de-identified”does not information;covered entities may use and disclose personal health information, restriction, without if they first listedremove eighteen identifiers such as name, social security number, and home address. Additional information has been added ever since. In 2007 the first Additional information has been complete sequence of a single individual’s genomewas published. 36. al., Samuel Levy et 248 S B 1936 (1996). 30. 110 Stat. L. No. 104-191, Act, Pub. Accountability Portability and Health Insurance include genetic Health information does (2010). 45 C.F.R. § 164.508(a)(1) (2006). § 1320d-9(a) U.S.C. 42 information. 31. be used can information determines that “the risk then the [of reidentification] is very small,” Alternatively, if a statistician 32. (2010). 164.514(b)(2) 45 C.F.R. §§ 164.502(d)(2), restriction. disclosed without and D 578 Human Genome 35. Consortium, Sequencing Int’l Human Genome and the private company Celera raced to sequence the human genome, “letters”that is, to report all of the nucleotide of all of the DNA comprising all 24 chromosomes. and Y sex chromosomes would be sequenced). Celera joined the race full time in 1999. J. race full time in 1999. J. Celera joined the sequenced). be would Y sex chromosomes and C first working drafts of the human genome in 2000 and they released first working drafts of the human approximatelythe following year. 90 percent complete annotated drafts 86. published DNA sequences had been derived from several anonymous donors. Int’l Human Int’l donors. sequences had been several DNA derived anonymous published from Consortium, Genome Sequencing use or disclosure of otherwiseuse or disclosure of protected that use or health information if disclosure is for research purposes, although a waiver of consent must an IRBfirst be approved by or a similar privacy board. Accountability Act (“HIPAA”). Accountability health care providers,health care health plans, health clearinghouses—from care or disclos[ing]“us[ing] without health information protected an authorization” (meaning, from informed consent) the patient whose isinformation to use subject or disclosure. 30555_cdt_9-2 Sheet No. 126 Side B 08/09/2011 09:04:54 B 08/09/2011 126 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 127 Side A 08/09/2011 09:04:54
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37 , 34 G I.B.M. Joins Pursuit of $1,000 Personal Genome of $1,000 Pursuit Joins I.B.M. Illumina Full Genome Sequencing Costs Below $20k Below Costs Sequencing Genome Full Illumina , https://www.23andMe.com (last visited Feb. 24, 2011); (last visited Feb. 24, 2011); , https://www.23andMe.com E Genetic Variation in an In Genetic Variation M AND , 23 (July 18, 2010, 11:37 AM), 11:37 18, 2010, (July , Alain Vignal et al., Vignal Alain , 8/1/2011 e.g. , http://www.decodeme.com (last visited Feb. , http://www.decodeme.com (last visited 24, 2011); L 2. Direct-to-Consumer Genetic Testing 2. Direct-to-Consumer Testing Genetic An even cheaper and faster approach is to examine single e.g. 39 , , ME UNDIT ELETE P D . See . How Does 23andMe Genotype My DNA? How Does 23andMe . . See Advancements in sequencing and technology equipment were that
OT 40 41 37 (2008), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2493042/pdf/pgen.1000160.pdf.
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(2002). (2002). 1, DE D 2011]A http://www.lumigenix.com (last Feb. 24, 2011); visited (last visited Feb. 24, 2011). https://www.pathway.com charges of that year. And the company by July to $19,500 dropped from $48,000 in early 2010 38. serv full genome sequencing Illumina’s patient’s of that to treatment could lead sequencing that certifies physician a if just $9,500 Randall Parker, condition. D2. at Oct. 6, 2009, 39. C. Ng et al., Pauline http://www.futurepundit.com/archives/007347.html. Soon, full genome sequencing may cost Soon, http://www.futurepundit.com/archives/007347.html. that. John Markoff, of one tenth https://www.23andme.com/you/faqwin/chip (last visited Apr. 3, 2011). https://www.23andme.com/you/faqwin/chip http://www.navigenics.com (last visited Feb. 24, 2011); P visited Feb. 24, 2011); http://www.navigenics.com (last developed in conjunction with the sequencing of the human genome of the human with the sequencing in conjunction developed soon paved for several Internet-ba the way genome sequencing services directly to members of the general public. sequencinggenome services to members of directly general public. the are referredThese companies direct-to-consumer to as genetic testing companies (“DTC-GTCs”). have already been identified and reported by researchers, and they eye color) and clinical (e.g. sickle correspond to both non-clinical (e.g. cell anemia) traits. By using DNA chip technology, DTC-GTCs can study simultaneously. a million SNPs almost F C Y 30555_cdt_9-2 Sheet No. 127 Side A 08/09/2011 09:04:54 A 08/09/2011 127 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 127 Side B 08/09/2011 09:04:54 M K
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42 ELETE D . Consent Document . Consent SUBJECTS A. Research Arms of Direct-to-Consumer Genetic Testing Companies A. Research Arms of Direct-to-Consumer The initial premise of DTC-GTCs was that consumers paidThe initial premise of DTC-GTCs to have While studies methods on new surgical might still have to be Most research studies on humans have traditionally been conducted been conducted have traditionally studies on humans Most research One of the largest DTC companies, 23andMe, has a research arm OT 43 ONLINE N
O creating of a larger pool samples than can be achieved through typical in Collaboration with Sciences (CIOMS), Council for International Organization of Medical 42. a study. subjectsscenario, their participation in paid for are research In the typical Organization (WHO), the World Health Research Involving Human Subjects (2002) Subjects Research Involving Human II. D 580 Apr. 3, 2011). Apr. 3, 2011). note 13, at 79. note 13, at 79. a DNA sample sequenced and analyzed related to their for information ancestry, risk of disease, and non-disea recently, companies have added customers can share their purchased informationgenetic use in for research. For the first time, subjects studies. and fraternal twins for a conductedan operating room table, in person on the Internet has greatly expanded the studies that can be types of research conducted without personal interaction re between could have her cystic fibrosis patients and their families submit DNA samples to an online-based testing to investigate company in order the online surveys to disease, and she could also create genetic basis of the gather information her patients respond to a new treatment. about how Similarly, the twins in the nature-versus-nurture could submit their study DNA samples to an online-based twins’ community and answer survey questions there, without ever meeting has the professor. The Internet created a whole new forum for scientific research, and both for-profit and not-for-profit groups are utilizing it. by, and physically at, institutions suchphysically at, institutions by, and as universities, and hospitals, have pulmonologist might a For example, companies. pharmaceutical patients to participate cystic fibrosis invited her newin a study on a professor might treatment, or a clinical called 23andWe for the purpose of investigatingcalled 23andWe for the purpose the basic causes of disease, developing drugs and other trea individual’s risk of disease. 30555_cdt_9-2 Sheet No. 127 Side B 08/09/2011 09:04:54 B 08/09/2011 127 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 128 Side A 08/09/2011 09:04:54
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49 AND AND AVIGENICS 23andMe 46 , 23 nate their genetic nate their , 23 Research Revolution Law). It appears that It appears that Law).
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47 Navigenics’s customers’ Navigenics’s customers’ , N 23andMe Sarcoma Community: A A Community: Sarcoma 23andMe search Revolution, but without but without search Revolution, 48 581 rength in Numbers rength diabetes), as well as less-serious note 43. for Parkinson’s disease one and Customers could do Customers s and outside experts. Customers who were were who experts. Customers outside and s was aimed at creating, 23andMe via the aimed was EVOLUTION supra R , rve as experimental controls. rve as experimental controls. Participantscontribute their genetic , https://www.23andme.com/slideshow/research (slide , https://www.23andme.com/slideshow/research (slide , https://www.23andme.com/slideshow/research (slide , https://www.23andme.com/slideshow/research (slide ESEARCH 44 E E R
Community: St Community: M M e general themes of Re note 44. note 44. most, if not all, DTC-GTCs. most, conduct research studies. conduct research AND AND Consent Document Consent Telecommunications and High Technology 23 supra , 23 , Part III.B.1. Part III.B.1. 8/1/2011
, https://www.23andme.com/researchrevolution (last visited Apr. 1, 2010) (archived 1, 2010) (last visited Apr. , https://www.23andme.com/researchrevolution E ELETE D M . Featured Research . Featured . See infra . See . Id. . 23andMe Parkinson’s . Featured Research,. Featured . Featured Research . Featured . See Privacy Policy Privacy See . B. Non-Profit Research Consortiums Publicly funded research projects aim to advance the understanding Although not clearly definedAlthough not clearly or promoted like 23andMe’s OT 44 50 49 46 45 47 48 N AND O M K 2) (last visited Apr. 3, 2011); 2) (last visited Apr. customer base, a large enough data pool such that statistically meaningful research on a a on research meaningful statistically that such pool data large enough a customer base, conducted. be could health condition particular migraines, included which problems, or more of ten health one on studies to information were suffering from the who Those arthritis. epilepsy, multiple sclerosis, and rheumatoid 23andMe promised to had enrolled, patients 1,000 and when were called “patients” conditions resource in-house both using study start a research of that condition as “supporters” still sign up could a particular condition not suffering from se and their genetic information would 23 1) (last visited Apr. 3, 2011). Until 2010, 23andMe was also running a program called running also was Until 2010, 23andMe Apr. 3, 2011). 1) (last visited “Research which, Revolution” like 23andWe, Two clinical research communities, one have also beenfor sarcoma, established. been Those who have diagnosed sarcoma, or relatedwith Parkinson’s, disorders may join the respective DNA pledge to contribute their sequenced community if they and to abouttake online surveys their experiences with the diseases. genetic information may also begenetic information used for external studies, research true for the customers of true for the customers information and answer online surveys, which cover a range ofa range cover which topics surveys, online answer and information from non-clinical(e.g. freckles, traits left-handedness) right- or to serious diseases (e.g. Parkinson’s disease, (e.g.conditions migraines, intolerance) lactose and responses to drugs.
location-based trials. clinical D 2011]A customer-directed resource allocation to, or topic selection of, research studies. studies. selection of, research or topic to, customer-directed resource allocation 23andWe now encompasses th 23andWe now copy on file with Journal on copy on file with
https://www.23andme.com/pd (last visited Apr. 3, 2011); visited Apr. 3, https://www.23andme.com/pd (last Patient-Driven Revolution in Sarcoma Research http://www.navigenics.com/visitor/what_we_offer/our_policies/privacy updated June 19, (last 2009). will then “correlate [customers’] responses to onlinewill then “correlate with their surveys genetic data” in order to https://www.23andme.com/sarcoma (last visited Apr. 3, 2011). https://www.23andme.com/sarcoma (last visited Apr. 3, 2011). 23andWe, Navigenics does have23andWe, Navigenics a which it research arm through geneticconducts its own and medical research.
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ROJECT 54 P
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lot of it—has become IN . [Vol. 9 [Vol..
ENOME ENOME The project’s goal The project’s is to G 52 Similarly, the mission of 53 nces continue to improve the , http://www.personalgenomes.org (last , http://www.personalgenomes.org (last the genetic information of their PRIVACY note 51.
ROJECT P supra , on.html (last visited Apr. 5, 2011). ENOME ENOME ERSONAL ERSONAL ROJECT G P J. L ON TECH. HIGH & TELECOMM. formation—and sharing a
55 COMMUNITIES
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G ERSONAL ERSONAL , P , P 8/1/2011 e.g. ,
The 1000 Genomes is an international Project 1000 Genomes The research ERSONAL ERSONAL ELETE Press Release, 1000 Genomes Project, International Consortium Announces the 1000 51 D . Mission . Id. . See RESEARCH
Sharing genetic in GENETIC OT 54 53 51
N O currently recruiting almost 100,000 volunteers to share their personal and almost 100,000 volunteers currently recruiting genetic information. sequence the genomes of approximately 1200 people worldwide and to worldwide 1200 people approximately the genomes of sequence make that scientific community to the worldwide “swiftly available data through freely databases.” accessible public
visited Apr. 3, 2011). visited Apr. 3, 2011). 52. Genomes Project 1 (Jan. 22, 2008), http://www.1000genomes.org/sites/1000genomes.org/files/docs/1000genomes-newsrelease.pdf.
of geneticenvironmental and contributions as to as well human traits, to prevent and treat, to diagnose, ability professionals’ medical improve illness. D 582 Harvard School of Medicine’s Personal Genome Project (“PGP”) Medicine’s Personal Genome Project Harvard School of is to genomics technologydevelop personal and practices that “yield identifiable and improvable at manageable levels benefits of risk.” III. 55. P 55. http://www.personalgenomes.org/missi very easy very Technological quickly. adva speed and accuracy of DNA sequencing, and scientific continues research increaseunderstandingof meanwhat those sequences to our as predictors of health, disease, to pharmaceuticals. or response Further, the Internet for convenient, allows rapid dissemination of all of that information: the reports about improved techniques, sequencing the announcements of the latest medical breakthroughs, and uploads of the sequence data itself. For-profit companies and non-profit consortiums are already taking advantage of the Internet as a venue for genetic research subjects. But all ofresearch studies and as a source of this is happening at least one step section explores ahead of legislators. This the extent to which genetic information is protected by law, along with how online-based researchers protect subjects. consortium formedconsortium “to detailed create the most and medically useful genetic variation.” date of human picture to 30555_cdt_9-2 Sheet No. 128 Side B 08/09/2011 09:04:54 B 08/09/2011 128 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 129 Side A 08/09/2011 09:04:54
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Ethical Ethical 5:25
Patient Patient ENETICS G
. ED 63, 73-77 (2009) (2009) 63, 73-77 M
amended by J. dicine and the Legal the Legal and dicine M ATRIX these acts remained these acts remained M Next Generation: The Genetic Next Generation: The person’s appearance or person’s ion Act (“GINA”) was , 125C A , 125C EALTH 583 L.J. 311, 318-40 (2009). (2009). 318-40 L.J. 311,
ral and state legislation provides , 19 H C.R. ployees based on theirgenetic
ection under the Public Health Service Act EVOLUTION U. ent from a ent from R 64 Part Two: Personalized Me Two: Personalized Part
ASON ASON States attempted to supplement federal 61 59 M
ESEARCH . R note 58, at 89-93. at 89-93. 58, note
Advancing Civil Rights, The Civil Rights, Advancing L., Jan. 2009, at 1, 37 (citing James G. Hodge, Jr., Jr., at 1, 37 (citing James G. Hodge, L., Jan. 2009,
EO . ation Nondiscriminat CI It employers prohibits from discriminating supra S 62 New Frontiers for Genetic Privacy Law: The Genetic Information Information The Genetic Law: Privacy for Genetic Frontiers New Additionally, genetic information is “remarkably information Additionally, genetic , 19 G , 19 IFE 56 L
formation and prot & Federal with legislation, including the Americans 58 Patient-Tailored Medicine, Medicine, Patient-Tailored In the United States, fede It also amended the Employee Retirement Income It also amended the Employee 57 63 but the resulting patchwork of laws provided “inadequate” EALTH at 347-50; Tan, at 347-50; 8/1/2011 1. The Genetic Information Nondiscrimination Act of 2008 Nondiscrimination Act 1. The Genetic Information 60 the Internal Revenue Code of 1986 (relating to group health the Internal Revenue Code of 1986 H id.
Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 110-233, 122 L. No. 2008, Pub. Act of Nondiscrimination Genetic Information Daniel Schlein, § 102 (to be codified at 42 U.S.C. §§ 300gg to gg-53, codified at 42 U.S.C. §§ 300gg (to be § 102
65 , J. ELETE D . See . See . See . Id. . Id. . Id. A. Relevant Legislation Reports of discrimination based on genetic information began as Genetic information is unique compared to other types compared to information is unique Genetic of health The Genetic Inform OT 59 60 61 62 65 57 N O M K
Stat. 881, § 2 (2008). § 2 (2008). Stat. 881, 63. 2010). (West to ff-11 §§ 2000ff 42 U.S.C.A. 29 U.S.C.). scattered sections of in be codified (to (2008) 122 Stat. 881 64. 110-233, § 101, L. No. Act of 2008, Pub. Nondiscrimination Genetic Information (reviewing instances of genetic discrimination). discrimination). of genetic (reviewing instances Act of 2008 Nondiscrimination Security Act of 1974 (“ERISA”), (“PHS”), Information Nondiscrimination Act of 2008 and Beyond and of 2008 Act Nondiscrimination Information 58. Morse Hyun-Myung Tan, Hyun-Myung 66, 69 (2004)). Morse 58. Ethnic Diversity, 56. & Advisory Council on Racial Ass’n’s Lawyers Jeffrey P. Braff et al., Am. Health Landscape D 2011]A uncertain, and at best, limited. information. against job applicants or current em protection from discrimination. Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Title VII of the Civil Rights Act Disabilities Act, Health InsuranceAccountability Portability and not directly Act, did address genetic in
some protection against misuse of this information. early as 1991. legislation, information becauseinformation it “can reveal information about an individual’s current family members and future offspring” including “predispositions and personal characteristics” evenpredispositions when those and appar are not readily characteristics current health status. Issues Concerning Genetic Testing and Screening in Public Health Public in Screening and Genetic Testing Concerning Issues identifiable.” passed in 2008 to provide “national and uniform” protection against genetic discrimination. C Y 30555_cdt_9-2 Sheet No. 129 Side A 08/09/2011 09:04:54 A 08/09/2011 129 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 129 Side B 08/09/2011 09:04:54 M K , C Y PM PM
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ENOME ENOME Patient Patient , 1 G EGISLATURES ONFERENCE OF OF ONFERENCE L C amended by L ’ Furthermore, 71 on the Internet. Patient Protection and AT 32, 33 (2008). (2008). 32, 33 , N ct genetic information A’s insurance provision . [Vol. 9 [Vol.. ATURE amended by
Two Cheers for GINA? Cheers for Two 74 , 456 N , 456 manifestation of a diseasemanifestation of or discriminationfinancial service by to uniformly prohibit to uniformly of both issuers 67 And within the context of insurance, it And within the 70 and Long-Term Care Insurance Long-Term Care and Fourteen states restri domain, such as information 73 J. L ON TECH. HIGH & TELECOMM.
otections. Although GIN otections. states are free to enact legislation with stricter 68 72 WhenConsent Gets in the Way note 58, at 103. at 103. 58, note and Title and Securitythe Social of XVIII (relating Act to 8/1/2011 supra 66 2. State Laws GINA alsocover does not “spheres life” outside of of , 29 U.S.C.A. § 1182 (West 2010); 42 U.S.C.A. § 300gg-1 (West 2010). 2010). (West § 300gg-1 42 U.S.C.A. 2010); § 1182 (West U.S.C.A. , 29 § 104 (to be codified at 42 U.S.C. § 1395ss, § 1395ss, be codified at 42 U.S.C. § 104 (to §§ 101-05 (to be codified in scattered sections of 26 U.S.C., 29 U.S.C., 42 42 29 U.S.C., U.S.C., 26 of in scattered sections codified be (to §§ 101-05 § 103 (to be codified in scattered sections of 26 U.S.C., 26 U.S.C., sections of scattered be codified in (to § 103
69 ELETE D . Id. . Id. . Id. . Disability Life, and Genetics . E.g. . Id. GINA preempts state laws only to the extent of mandating Although GINA fills in many gaps left by the previous patchwork left by gaps GINA fills in many Although . 6.1, 6.2 (2009). (2009). . 6.1, 6.2 OT 67 68 66 73 71 74 N ED O TATE TATE U.S.C.). U.S.C.). 69. Majumder, & Mary Anderlik McGuire Amy L. Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)). 119 (2010)). 124 Stat. 111-148, Pub. L. No. Affordable Care Act, Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)). Stat. 119 (2010)). 111-148, 124 L. No. Act, Pub. Care Affordable
72. Tan, 72. minimum standards; employmentinsurance. and 70. Patrick Taylor, Patrick 70. providers Importantly, or in social contexts. GINA does not protect information in the public GINA says nothing about genetic discrimination so for disability in life insurance, 15 states do insurance, and nine do so for long-term care insurance. Medicare supplementalMedicare insurance) individual plans from health insurance and group using genetic forinformation underwriting policy and when issuing a purposes, both when setting its price. M S Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)). 119 (2010)). 124 Stat. 111-148, Pub. L. No. Affordable Care Act, Protection and insurance), D 584 covers only health insurance; disability, long-term care, and life insurance are not included.Although insurers cannot “request, or require, information,purchase” genetic that information “incidental” collecting to acquiring other allowable is permitted. information of legislation and common law, it is not comprehensive. law, it is not and common of legislation It does not aboutprotect information the actual disorder.
http://www.ncsl.org/IssuesResearch/Health/GeneticNondiscriminationLawsinLifeDisability/t is limited to health insurance, 17 states currently have laws thatis limited to health insurance, 17 cover insurance. other types of genetic information pr genetic information abid/14283/Default.aspx (last updated Jan. 28, 2008). 28, 2008). Jan. updated (last abid/14283/Default.aspx 30555_cdt_9-2 Sheet No. 129 Side B 08/09/2011 09:04:54 B 08/09/2011 129 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 130 Side A 08/09/2011 09:04:54 PM PM
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77 Personal 75 is sub-categorized in websites. This section websites. This section Aggregated Genetic
76 . . other users . . . to 585 consortiums acknowledge ment and Terms of Service , https://www.23andme.com/about/tos , https://www.23andme.com/about/tos E —then that user’s information, information, —then that user’s 79 M EVOLUTION In other words, the only difference R AND formation the collects, how company 80 r Genetic Testing Companies r Genetic Testing , https://www.23andme.com/about/privacy (last , 23 1. 1.
E . §
M ESEARCH R
AND with other information”) note 43. note 43. note 75. note 75. note 75 note 75, , 23 supra supra supra , , , Terms of Service supra , 8/1/2011 1. Direct-to-Consume
If a user chooses to participate in 23andWe Research—which ELETE 78 D . Privacy Statement . Privacy Document . Consent . Id. . Privacy Privacy . Statement . Privacy Statement . Privacy . Terms of Service of . Terms B. Privacy Policies,B. Privacy and Informed Service, Terms of Consent DTC-GTCs and non-profitDTC-GTCs research lengthy23andMe uses a Privacy State
OT 78 79 77 75 80 76 N users may be shared with both non-profit and commercial third users may be shared with both O M K minimize the possibility of exposing individual-level information,” and Self-Reported “stripped Information, which has been of Registration Information and combined with data from . updated June 24, 2010); 24, updated June the company its encourages users to do in aggregated form, may also be disclosedthird parties for the purpose to of publication in scientific journals.
all parties.
D 2011]A
Information (“information that can beidentify used to [a user] either alone or in combination part as Registration Information (name, email address, etc. used to create an account or purchase services), Genetic Information (such as the data generated by processing a user’s DNA and Self-Reported sample), responses). Information (such as a user’s survey the company and how they protect it. uses that information, examines how online-based genetic research groups are—or are not— using these surrogate documents to adequately inform research participants of potential in risks inherent population. their agreement types to address the of in genetic information online Given the to varying degrees. privacy risks nature of these signed groups, traditional have been consent forms replaced by click-through agreements, traditional face-to-face and with medicalconversations professionals have been replaced by privacy of service documentspolicies and terms posted on (last visited Apr. 5, 2011). in information disclosure between 23andWe participation and non- participation is that personal information of the former group, but not the latter, may be published in scientific journals. C Y 30555_cdt_9-2 Sheet No. 130 Side A 08/09/2011 09:04:54 A 08/09/2011 130 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 130 Side B 08/09/2011 09:04:54 M K , C Y PM PM
In 85 5:25
86 associations What is Gina? 579, 579 (2010) 579, 579 (2010) 23andMe also 23andMe 82 EPORTS
R
84 . [Vol. 9 [Vol.. The company does The company not n health conditions or candidness about and clarity on 83 Part IV.A.1. Part IV.A.1. note 43. hat its Consent Document is is Document Consent hat its , 11 EMBO not have beenpredicted. it is also unclear from where the “IRB- it is also unclear infra
“[d]iscover or validate “[d]iscover or supra , onsequences, such as a third party 5. It is unclear whether5. It of Service is the Terms see also see
§
or disability insurance providers.” or disability Blurring Lines Blurring companies vary in their , https://www.23andme.com/more/considerations (last (last , https://www.23andme.com/more/considerations E individual contributors. ion for research purposes). purposes). research for ion note 129; note 43. note 43. M note 75. note 75. note 75, J. L ON TECH. HIGH & TELECOMM. For example, in its Privacy Policy, Navigenics note 48. 87 infra AND supra supra , supra , , supra See also Consent Document , 23 , Lin et al., Part IV.A.1. Part IV.A.1. and the company suggests t suggests the company and 8/1/2011 See In promotion of that belief, it may use its customers’ Genetic 81 88 Heidi C. Howard et al., C. Heidi Presumably Navigenics is aware of how little genetic data is required to identify Navigenics isaware of how littleis required to identify Presumably genetic data
, https://www.23andme.com/you/faqwin/gina (last visited Apr. 12, 2011). Apr. 12, 2011). (last visited , https://www.23andme.com/you/faqwin/gina The company publish may also its findings “without disclosing Navigenics’s Informed Consent document does state that E ELETE 89 90 D M . Id. . Id. . Cf. . Consent Document . Consent . Terms of Service . Privacy Policy . Privacy . See infra . See . Privacy Statement . Privacy . Considerations Despite not having research arms as apparentDespite not having other as 23andMe’s, 23andMe requires informed consent in order to participate in to participate in order consent informed requires 23andMe 23andMe has posted information about GINA on its website and about GINA on its website and information 23andMe has posted OT 90 89 87 81 82 88 84 83 86 N AND O an individual. an individual.
between certain genetic certai variations and traits.” Data (i.e. the DNA genotyping results) to their Phenotype linked for example, gender, height, weight, Information (defined to include, ethnicity, and ancestry, as well as health of the conditions and diseases family members)and the user’s to user general, however, does warn consumers the company sharing geneticthat data can lead to unintended c discovering additional information or future scientific about a user, advances revelation causing a that could [a user’s] Genetic Data in a quantity sufficient to uniquely[a user’s] Genetic Data in a quantity [a identify user].” states that it “believes in . . . helping further scientific and medical research.” “based IRB-approved consent upon an document.” Genetic Data and Phenotype Information will be used by the company visited Feb. 24, 2011). visited Feb. 24, 2011).
D 586 requires informedrequires consent for the company Registration to share Information partners. third-party research with acknowledges some, but not all, in GINA’s of the gaps protection. (reporting that DTC genetic testing use of customers’ genetic informat use of customers’
mention whether thirdmention whom parties with will be information it shares or to refrain of that information to protect the confidentiality required from attempts to reidentify not cover life does “GINA 85. 23 referring to the actual Consent Document, and Document, referring to the actual Consent came. upon document own based its that 23andMe approved” document DTC-GTCs are no less likely to use their customers’ genetic information less likely to use DTC-GTCs are no for research purposes. 23andWe, 30555_cdt_9-2 Sheet No. 130 Side B 08/09/2011 09:04:54 B 08/09/2011 130 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 131 Side A 08/09/2011 09:04:54 , PM PM
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which 96 AVIGENICS These 93 It is unclear 94 , N which suggests that which suggests that 95 independent approval for it is unclear whether the 98 587 opportunities to share their , http://www.decodeme.com/service- amples are analyzed) doubles as ME obligated to obtain permission for research for permission obligated to obtain which further suggests that the research, state does it nor whether use for internal research purposes. use for internalresearch purposes. EVOLUTION note 96. note 97 R CODE supra is “deCODEme Genetic Scan Service Agreement Genetic Scan Service is “deCODEme , DE genetic or medical research. , ESEARCH , http://www.decodeme.com/privacy-policy (last updated , http://www.decodeme.com/privacy-policy (last , http://www.decodeme.com/terms-of-use (last updated http://www.decodeme.com/terms-of-use , R
ME ME but it does not give any specifics about the about the any specifics not give it does but note 48. 91 CODE CODE Service Agreement Service DE DE supra , , , Service Agreement Service Part V.B.2. 8/1/2011
ELETE
See infra See D . Privacy Policy . Privacy . Informed Consent,Informed Health Compass . . Use Terms of . Privacy Policy . Privacy . Id. . Id. Currently, fellow DTC-GTCs Lumigenix and PathwayCurrently, fellow DTC-GTCs Lumigenix Genomics deCODEme, another DTC-GTC,deCODEme, another may invite “to its customers Navigenics also gives its customers 92 OT 96 91 95 93 94 97 (last visited Feb. 24, 2011). Feb. 24, 2011). (last visited
N O M K do not appear to be conducting any in-house research, but both participation is voluntary. both the company’s Privacy Policy However, and Service Agreement also statedeCODEme may that its use customers’ to gather statistical information aggregate data, company would seek additional consent for participation in the research studies that it invites its users to join. website also The company’s does not mention whether deCODEme has sought use of its data in research studies. company is linking Genetic Information with Self-Reported Information (as 23andMe would describe it). Because the Service Agreement (which users must agree to before their DNA s deCODEme’s “informed” consent document, Nov. 12, 2007); 2007); Nov. 12, June 2, 2007). June 2, 2007). organizations may and “deposit also publish their study results such . into public data Phenotype Information] . . [Genetic Data and repositories them publicly available.” or otherwise make
for internal research, D 2011]A whether this is an opt-insystem. or opt-out participate or other research activities,” in studies suggests at least minimal automatic Additionally, that data may include “associating genetic variants with any of the self-reported user attributes,” Genetic Data and PhenotypeGenetic Data third-party with not-for-profit Information who conduct organizations
http://www.navigenics.com/visitor/what_we_offer/our_policies/informed_consent/health_com pass are currently not as Navigenics such DTC-GTCs 92. because private be voluntary a study plan would Seeking independent approval of studies. potential subject that scope of areas or that research been has approved such authority, by an independent as an IRB. and Informed Consent.” 98. The of the full name document agreement (last updated Nov. 30, 2009). 2009). Nov. 30, agreement (last updated C Y 30555_cdt_9-2 Sheet No. 131 Side A 08/09/2011 09:04:54 A 08/09/2011 131 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 131 Side B 08/09/2011 09:04:54 M K
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ROJECT ROJECT P
P 100 available at available CREENING FOR FOR CREENING S ENOME ENOME G
Because one of
102 103 105 ENOME ENOME available at available G LIGIBILITY ERSONAL ERSONAL . [Vol. 9 [Vol.. E
P
: almost all information almost all information : , https://www.pathway.com/about- 104 ORM ORM F F ts understand the implications of and commercial uses ofand commercial uses human § I (2010), I (2010), § ntial risks of participating, project permission from an IRB. an from permission The latter assesses “comprehension assesses “comprehension latter The ENOMICS ERSONAL ERSONAL G 106 ONSENT ONSENT ONSENT ONSENT parties who access the data to do so). so). to do who access the data parties §§ IV:4.1, V:5.1, V:5.5. §§ IV:4.1, V:5.1,
ROJECT , C , C P a passing score of no less than 100 percent a passing score of no less than 100 percent 103, 107 , P , http://www.lumigenix.com/privacy (last updated Nov. (last updated Nov. http://www.lumigenix.com/privacy ,
ATHWAY ATHWAY ROJECT ROJECT note P note 104, § IV:4.1-.2. note 104, § IV:4.1-.2. P , P J. L ON TECH. HIGH & TELECOMM. ] (explaining that PGP will not keep or PGP ] (explaining that data in a confidential ]. ]. note 52, at 2. ENOME ENOME supra supra UMIGENIX ators obtain study ators obtain , , G supra ENOME ENOME ENOME , L G G ONSENT ONSENT C C ONSENT ONSENT C note 99. note 99. C 8/1/2011 INI ULL 2. Non-Profit ResearchConsortiums Most from DNA the genome sequences will come of Not only do both companies pledge to obtain their customers’ their to obtain pledge both companies only do Not Privacy Statement Part IV.A.1 (discussing reidentifiability of an individual anonymous contributor to to anonymous contributor individual an of reidentifiability (discussing IV.A.1 Part at 4 (noting that samples collected, without any medical or identifying at 4 (noting that samples collected, without INI 99 ERSONAL 101 ERSONAL ERSONAL ERSONAL ERSONAL ULL ELETE P D . Supra . Privacy Policy . Privacy . How It Works . . Id. The privacy with participation risks associated in the 1000 To help ensure that study participan In complete contrast, privacyIn complete contrast, in the and confidentiality for subjects OT 99 100 107 102 N O questionnaire and an entrance exam. entrance questionnaire and an Personal Genome Project will be almost non-existent. Personal Genome the PGP’s goals research is to explore genetic data linked to traitgenetic data linked information, anonymous fashion, nor will it require third fashion, anonymous 104. P 104. http://www.personalgenomes.org/consent/PGP_MiniConsent_Approved03312010.pdf http://www.personalgenomes.org/consent/PGP_MiniConsent_Approved03312010.pdf [hereinafter M 10, 2010); 10, 2010); 106. M 106. http://www.personalgenomes.org/consent/PGP_Consent_Approved03312010.pdf http://www.personalgenomes.org/consent/PGP_Consent_Approved03312010.pdf [hereinafter F 105. F 105. § X:10.1 (2010), (2010), § X:10.1 Project). 1000 Genomes the HapMap project will be used for much of the for information, But see infra as such that compiled by the HapMap project). samples, of DNA a pool of thousands P 103. Genomes Project are seeminglyGenomes Project low because the researchers are not collecting any personally identifyingmedical or information from subjects. 101. Press Release, Press 101. us/privacy-policy (last visited Apr. 12, 2011).
companies may collaborate with other organizations who conduct who conduct organizations with other collaborate may companies research. D 588 their involvement, interested individuals must first submit to a rigorous to a rigorous submit first must individuals interested involvement, their with an eligibility begins that process pre-enrollment IRB-approved previously submitted to another project for which no personallywhich no previously another project for submitted to identifying or medical information collected either. was THE express consent before sharing any data with collaborators, they will also collaborators, they any data with before sharing express consent collabor require that of concepts . . . includ[ing] . . . pote and basic genetics”; protocols,
submitted by a participant, including physical trait and medical willinformation, and even photographs, be posted on the PGP’s public website and database along with genetic information. 30555_cdt_9-2 Sheet No. 131 Side B 08/09/2011 09:04:54 B 08/09/2011 131 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 132 Side A 08/09/2011 09:04:54
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109 possibly 118 From Genetic Privacy Privacy From Genetic ary Research Reportary Research idual, the baseline trait baseline trait idual, the ed eligible to continue, the the to continue, eligible ed 589 Once released, neither the 113 note 103, § IV:4.1. d vital signs” as well as family medical d vital signs” as well as family where it will be associated with where it will be associated 112 supra , EVOLUTION d to that person’s record, R 406, 409 (2008). 409 (2008). 406, enerate a Preliminenerate a public website and database, and the the and database, and website public Thosetissue samples are used for DNA
trol who has access to, makes copies of, or trol who has access ONSENT 111 114 ESEARCH C R
ENETICS G
ULL If someone altered the data and republished . note 103, § V:5.1-.3. An enrollee may choose not to publish to An enrollee may choose not § V:5.1-.3. note 103, note 104, § IV:4.2. note 104, § IV:4.2. 115 EV thus implicating an innocent person in a crime. thus implicating an innocent in a crime. person R supra supra If an applicant is deem applicant an If 117 , , After the PGP enrolls an indiv an PGP enrolls the After 108 Someone could even “make synthetic DNA and plant 110 ATURE ATURE 116 ONSENT ONSENT , 42 U.S.C.A .§ 2000ff-1(b)(4) (West 2010). (West 2010). 2000ff-1(b)(4) .§ U.S.C.A 42 , , 9 N C C 8/1/2011 e.g. § IV. § IV. , § X:10.4. § X:10.4. § VII:7.1(a)(iii). § VII:7.1(a)(iii). § VII:7.1(c). § VII:7.1(c). § V:5.5(c). § V:5.5(c). § V:5.4-.5.
INI ULL ELETE § V:5.1(b). § V:5.1(b). D . Id. . Id. . Id. . See . Id. . Id. . Id. . Id. . Id. Id. This ready accessibility a suggests myriad of worrisome scenarios OT 118 117 116 119 115 114 113 110 112 N O M K
cannot be guaranteed, and subjects then consent to the possibility of complete public disclosure public disclosure of complete possibility then consent to the and subjects cannot be guaranteed, of their information, is called “open consent.” Jeantine E. Lunshof et al., affecting access to health insurance despite GINA. Further, GINA information from the public permits employers to acquire genetic domain, which would include the PGP’s public website and database.
verifying identity. verifying it at a crime scene,” the same claims of disease predisposition or criminal could relationships be falsely made. Additionally, although the will not intentionally information become part of a participant’s medical record, the information could be identified with a particularindividual and adde
http://www.personalgenomes.org/howitworks.html (last visited Feb. 24, 2011). This type of This 24, 2011). (last visited Feb. http://www.personalgenomes.org/howitworks.html anonymity privacy and that subjects’ openly admit researchers informed consent, in which correct is required. correct D 2011]A the previously-submitted baselinetrait data. thatshould help participantsdecidewhether release or not to their genetic website and database data to the public analysis, which in turn is used to g to Open Consent to Open 108. M 108. next pre-enrollment steps include submitting baseline trait data trait baseline submitting include steps pre-enrollment next otherwise uses the information. the uses otherwise participant nor the PGP can con participant nor the 111. F 111. history and a facial photograph. F and a facial history allergies, vaccines, medications, birth, “date of may include Baseline trait data 109. an race/ethnicity/ancestry, personal medical history, data is published on the PGP’s on published is data samples. tissue enrollee submits her baseline trait data, but that may make her ineligible to participate in other aspects of the aspects in other that to participate may make her ineligible but data, her baseline trait study. limited only by imagination. the PGP, “anyone According to with sufficient knowledge to could use the online data and resources” truthfully claim that a participant is, for predisposedexample, to a disease or relatedto criminals. C Y 30555_cdt_9-2 Sheet No. 132 Side A 08/09/2011 09:04:54 A 08/09/2011 132 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 132 Side B 08/09/2011 09:04:54 M K C Y PM PM
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Still, 122 . [Vol. 9 [Vol..
data corresponds would remain mination of. When other types of cial security number, address, are or (“GIC”), made its patient records ENEFIT B The Loss of Anonymity Loss of Anonymity The First, of course, GIC removed “explicit . 1701, 1706 (2010). (2010). 1701, 1706 . UBLIC UBLIC 121 EV P J. L ON TECH. HIGH & TELECOMM. Broken PromisesPrivacy: of Responding tothe Surprising Failure of ERSUS ERSUS V the belief that by removing certain pieces of information 120 8/1/2011 , 57 UCLA L. R L. UCLA , 57 1. Reidentification: 1. at 1719. at 1719.
ELETE RIVACY RIVACY D . Id. . Id. A. Privacy Concerns One’s DNA sequence or carrier status for a particular disease- An individual who chooses An individual who to participate in an online-based We have a lot to gain, and a lot to lose, from genetic research. a lotWe have to gain,a lot to lose, and genetic from research. OT P
122 121 N O
from data the individual to whom the anonymous. Unfortunately, recent studies have shown the failure of that the mid-1990s a Massachusettsassumption. For example, in government agency that purchased health insurance for state employees, the Group Insurance Commission available to researchers. 120. Paul Ohm, Paul 120. Anonymization IV. D 590 related gene is undoubtedly information that most people would want to keep private or at least limit the disse so private information, such as name, collected, they are usually anonymized released.before being shared or from the is deleted Typically rest this means the identifying information led to a “robust anonymizationof the data. For decades this has assumption,”
research study may research study may not be aware of the especially risks to his privacy, if not fullythe researcher does risks. These risks inform him of these anonymityinclude loss of (even researcher if the “promises” anonymity)confidentiality or and genetic discrimination (despite GINA). This section highlightsprivacy risks some of the associated online-based genetic research study. with participation in an Medical and scientific advancementsMedical about on information depend how diseases. traits and genes influence Yet collection mere of DNA for the research provides that an individual’sinformation can compromise that anonymity.privacy and of the competing highlights some This section that shape the debatevalues and concerns over how best to balance the ofbenefits and risks online-based genetic research. identifiers” such as name, address, and social securityidentifiers” such as name, address, number. one industrious researcher was able to use birth date,one industrious researcher was able sex, and ZIP code to identify the governor of Massachusetts (who had assured the public that patients’ information would remain private) from within the 30555_cdt_9-2 Sheet No. 132 Side B 08/09/2011 09:04:54 B 08/09/2011 132 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 133 Side A 08/09/2011 09:04:54
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1, , 321 5:25
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ENETICS ENETICS offer 128 G
CIENCE S O Thus, someone , 305 S 305 , 130 , 4 PL . One commentator One commentator 124 591 person could be pinpointed This matching This of seemingly either.
note 41. 123 131 anonymity of pooled genetic data supra , EVOLUTION reidentification R mbers. Even though hundredsor guarantee The National Institutes of Health 125 ESEARCH R
This is troubling because up to a million This is troubling because up to extent that these research projects 129 Resolving Individuals Contributing Trace Amounts of DNA to Highly to Highly DNA of Amounts Trace Contributing Resolving Individuals Whole-Genome Data Not Anonymous, Challenging Assumptions Anonymous, Challenging Not Whole-Genome Data a small set of SNPs. Genomic Research and Human Subject Privacy Genomic note 129. ey can no longer supra 8/1/2011 stating that “[t]hegreatest concern is that identifying an at 1719-20.
127 1278, 1278 (2008). (2008). 1278 1278, ELETE D . DNA? Genotype My 23andMe How Does . Id. . Id. . Id. . Id. What this means for participants in DTC genetic testing research Any sharingeven deidentified data, with fellow of genetic data, Before reidentification concerns surfaced, a 2004 computational surfaced, concerns Before reidentification Similarly, Similarly, study shocked a 2008 the genetic community research by OT 130 128 127 126 123 N O CIENCE M K Microarrays Genotyping 124. SNP High-Density Using Complex Mixtures Nils Homer et al., (2004). (2004). 131. Lin et al., with access to both individual and public genetic data could identify the individual using just individual this way could reveal sensitive health information.” After the 2008 study was published, the NIH and other similar research was published, the NIH and other After the 2008 study institutions genetic removed some data from their publicly accessible websites, 129. al., et Zhen Lin
S 125. Jennifer Couzin, Couzin, PMC2516199/pdf/pgen.1000167.pdf. (2008), http://www.ncbi.nlm.nih.gov/pmc/articles/ Jennifer 125.
“deidentified” records. of patient database D 2011]A (“NIH”) “confident in the had been so that it recommended made public it be for all researchers to use.” anonymous informationanonymous specificto the individual the whom from was derivedinformation is known as studies, as well as for subjects in non-profit research consortium studies, is that there is no safety in nu thousands of individuals’ genetic pooled for so-called information may be genome-wide association studies, a single within that pool. To the th or anonymity, researchers or third parties (as DTC-GTCs may do, acknowledge they and non-profit research consortiums readily do) opens up the possibility explained that “[b]ecause DNA pool consists of the many from so people, the assumption ha[d] been that it would be impossible to identify DNA.” any one individual’s SNPs are usually examined in DTC genetic testing. study had already determined that as few as 30 SNPs will uniquely 30 study had already as determined that as few identify a single person. proving it was possible to identify a single individual’s contribution DNA poolfrom a DNAof thousands of samples. C Y 30555_cdt_9-2 Sheet No. 133 Side A 08/09/2011 09:04:54 A 08/09/2011 133 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 133 Side B 08/09/2011 09:04:54 M K
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370, 370, , 109 5:25 , 9 A
For For 132 CIENCE lick-through Direct-to-Consumer , 312 S , 312 revealed during the course during the course revealed order to identify potential order to identify potential tic Testing: Protecting Against Against Protecting tic Testing: Fall 2007, at 42 n.149. n.149. 2007, at 42 Fall
. [Vol. 9 [Vol.. omed to c ., ECH T
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No Longer De-Identified t alone a medical professional.t alone a medical If a J.L. st Informed Consent Process Be Included? Be Process Consent Informed st
person, and not necessarily by a to believe that they treat informedto believe that they 133 s’ health risks can be s’ health risks is more likely to be answered by email For example, identical twins have For example, identical twins have ene DNA evidence in 134 Research Ethics and the Challenge of Whole-Genome of Whole-Genome the Challenge and Research Ethics 152, 154 (2008) (recommending that “participants . . . . “participants (recommending that 152, 154 (2008) , UCLA consent does not require comprehension). require comprehension). not consent does Relative Doubt: Familial Searches of DNA Databases Relative Doubt: Familial . understanding.” Katherine Wasson, . understanding.” ers are already accust ers are already ENETICS The Risky Business of Lifestyle Gene of Lifestyle The Risky Business J. L ON TECH. HIGH & TELECOMM. G
. EV R Erin Murphy, Erin Murphy, Cf. note 132, at 40 (citing Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), 1972), 772 (D.C. Cir. v. Spence, 464 F.2d (citing Canterbury note 132, at 40 ATURE . 291 (2010) (arguing against the practice of familial searching—the practice of of familial searching—the the practice against (arguing (2010) . 291 8/1/2011 56, 57 (2009). Yet lack of comprehension appears to be legally sufficient. to be legally sufficient. appears lack of comprehension 56, 57 (2009). Yet 2. Informed Consent and Autonomy2. Informed EV Amy L. McGuire et al., L. McGuire Amy supra R , 9 N , 9
ELETE D L. . See
. Participants inParticipants traditional clinical trialshealth meet with a usually An individual’s choice to participate in a research study or otherwise OT IOETHICS 134 N B ICH O
consent forms any differently thanagreements. software use agreements, and there reason is no medical professional. This physical emotional and between separation parties a false sense of security, can create and the casualness of the online environment in general can create joining a the impression that genetic study is trivial. After all, enrollmentfew clicks of a takes just a us mouse. Computer than by telephone, certainly not in care provider who can explain informed consent forms and answerconsent forms and informed who can explain care provider related questions. participants In contrast, research who enroll online do not interact personally le with anyone, potential it subject has a question, enrollees who do actually read the consentenrollees who do actually read the forms, concerns remain that they do not comprehend the content. identical DNA sequences, so if one twin contributes his genetic . include close genetic relatives in decisions about research participation” because “[c]linically . include close genetic relatives inabout research participation” decisions member about family relevant . . . information M of data analysis”). Sequencing 132. Gabrielle Kohlmeier, Gabrielle 132. Harmful Disclosure of Genetic Information J. that someone—for goodsomeone—for that engineer” “reverse ill—will or for data and the protections. privacy intended defeat D 592 for the proposition that legal informed that legal informed for the proposition Kohlmeier, share his or her genetic informationshould be respected. However, one of the unique aspectsof genetic information—that parts of it are choicecommon to one’s blood relatives—implicates and autonomy for family members who do not want to share their genetic information, and secrets that their or their relatives’perhaps do not want to know any DNA sequences might reveal. 371 (2006). “As is widely recognized in a medical context, a signature on a consent document on a consent a signature context, in a medical is widely recognized “As 371 (2006). does not necessarily indicate . . 133. Gibbs, A. & Richard McGuire Amy L. Genomics and Research Ethics: Should a More Robu a More Should Ethics: Research and Genomics searching matches sc for partial to crime relatives of the source, who is often the suspected perpetrator—on numerous grounds, numerous grounds, often the suspected perpetrator—onrelatives of the source, who is privacy). including 30555_cdt_9-2 Sheet No. 133 Side B 08/09/2011 09:04:54 B 08/09/2011 133 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 134 Side A 08/09/2011 09:04:54
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ATRIX 5:25
M . 285, 293-94 . 285, cause genetic EALTH ED M factors, can be factors,
compensation claims, &
, 20 H , 20 etic information with etic information J.L.
Part III.B. III.B. Part . M when genotype is linked to 593 See supra raises the likelihood that an raises the likelihood , 28 A , 28 out medical history, diet, and and diet, history, out medical 136 bout you is combined with what with what you is combined bout alth plans, workers’ is demand arises be is demand arises main about the employer who EVOLUTION R zheimer’s disease, and therefore whose g individuals’ gen g individuals’ scale from protecting privacy is many ESEARCH R
Enabling Responsible Public Genomics Public Responsible Enabling well as environmental and other environmental and well as note 58, at 117. Employers can acquire genetic information through new- through information can acquire genetic Employers at 117. note 58, 8/1/2011 supra 3. Genetic Discrimination Furthermore, longitudinal studies (those that track the same track the that (those studies longitudinal Furthermore, 137 ELETE D B. Public Benefit: Promoting, Not Impeding, Genetic Research B. Public Benefit: Promoting, Not Impeding, On the otherof the On the side Despite the protectionsDespite the does afford, the that GINA Act does not OT N O M K accurately studied only by combinin accurately studied DNA to study. And complex human traits and conditions, those and conditions, those human traits DNA to study. And complex genetic as influenced by ab such as that information, personal their exercise. Genetics Revolution: Conflicts, Challenges and Conundra and Challenges Conflicts, Revolution: Genetics 137. et al., Conley John M. (2002). (2002). 136. research consortiums. most non-profit results, as well as their publish may who Navigenics, 23andMe and DTC-GTCs at least includes This phenotype, when what your genes say a genes say your what when phenotype, you (and your say doctor) about you. For example, researchers cannot knowwhichdetermineinfluencethey do not genes if Alzheimer’s disease which subjects suffering from Al are information is valuable for research purposesinformation employer or service provideremployer or service will intentionally or unintentionally come to the likelihood that which in turn increases possess that information, discrimination will result. of genetic as easier sharing access to and greater for demand researchers’ well as other types of information. Th Participation in genetic research studies,Participation in genetic especially in those that make publiclytheir data or findings accessible, 325, 328 (2010). 325, 328 (2010). prohibit genetic discriminationprohibit publiclyor commercially basedon on the Internet. such as information available information, Nor do its provisionsdiscrimination protect against financial by service providers, healthby insurers other than Although insurers, or by society as a whole. prohibitGINA’s provisions an employer from using private genetic data to effect discrimination, re concerns “receive[s] in legal ways, us[es] that information genetic information rationaliz[es]illegally, and then such use on legal grounds.” 135. Tan, 135. information to a research study, his twin essentially does as well, perhaps does essentially his twin study, a research to information knowledge. or even consent without D 2011]A hire medical examinations, such as drug testing and fitness-for-duty exams, as well as through as well as through exams, and fitness-for-duty such as testing drug hire medical examinations, submitted to employer-sponsored he health claims and requests for sick, family, and medical leave. Joanne for L. Hustead & Janlori Goldman, and requests C Y 30555_cdt_9-2 Sheet No. 134 Side A 08/09/2011 09:04:54 A 08/09/2011 134 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 134 Side B 08/09/2011 09:04:54 M K
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R , 350 , 305 , 305 , 302
and 5:25 The The
144 143 139 Studies EQUENCING 142 S GREED AT THE AT THE GREED , 11 EMBO A al Researchers ENOME ENOME G d separate institutions such that “all human such that RINCIPLES . [Vol. 9 [Vol.. 140 P
, UMAN Data Storage and DNA Banking for for DNA Banking and Storage Data The need for linked data to linked for need The H 138 ck for U.S. Biomedic Statement on Human Genomic Databases Databases Genomic on Human Statement Genetic Discrimination: Time to Act Registry Research and Medical Privacy and Medical Research Registry 99 (2003)). (2003)). 99 time) require the ability to connect to connect the ability require time) 906 (2003)). (2003)). 906
Id. RGANIZATION EETING ON O M IOETHICS ENETICS B G
note 143. . L ’ Consent to “Personal” Genomics and Privacy and Genomics “Personal” to Consent ENOME ENOME UM NT I G supra
H J. L ON TECH. HIGH & TELECOMM.
& ended period of period ended J. TRATEGY
146 . S In practice, this has prevente Privacy Rule Creates Bottlene Creates Rule Privacy UR UMAN SIAN SIAN This uninhibited sharing of data an was considered 148 A note 70, at 32. 70, at 32. note
141 J. . 1452, 1453 (2004). 1453 (2004). . 1452, , 11 E supra ED at 341. at 341. 8/1/2011 M
UBIOS UBIOS J. (quotingH (quoting European Soc’y of Human Genetics, European Soc’y of Human Genetics, (quoting
. 168, 169 (2004) (referring to a survey by the American Association of Medical of a survey by the American Association (2004) (referring to 168, 169 745, 745 (2003). (2003). 745 745, ELETE NTERNATIONAL NTERNATIONAL D I NG . See id. . See . Id. . Id. . Id. , 13 E Further support for easier access to data comes from scholars who According to some medical professionals, HIPAA’s consent The Human inspired Genome Project that collections the view of E OT 138 141 148 142 N EW O IRST CIENCE CIENCE 140. Knoppers, Bartha Maria 139. data will be identified, but rather that “the content that who supplied mean that the individual not automatically data does and phenotypic that linking genotypic is worth noting It identifiable.” renders it inherently of the data decreasing the data pool because not all individuals will consent. consent is less likely to be sought from the very ill and very impaired. consent is less likely to be sought from 144. Taylor, Taylor, 144. 145. & Drazen, Ingelfinger genomic sequence information . . . should be freely available and in the public domain.” Those who do participate that could “represent a self-selected group skew research results.” These requirements include that “patients have to give for consent each use of their data.” 147. Jocelyn Kaiser, Jocelyn 147. Biomedical Research (1996)). (1996)). advance healthadvance care, then, conflicts with concerns about reidentifiability protections. privacy ineffective from that result and discrimination F a particular research participant with that person’s data in order to see what what see to order in data person’s with that participant research a particular time. over have changed conditions or traits participants over an ext over participants D 594 genetic information were “global public were genetic information goods”
143. & Jeffrey M. Drazen, Julie R. Ingelfinger N of 2002 416, 417 (2010) (quoting HUGO Ethics Committee, Ethics Committee, HUGO 416, 417 (2010) (quoting Colleges). decreased pool leads to biaseddecreased pool leads results because the elderly, illiterate, and those of lower socioeconomic status are less likely to consent, such as the PGP follow thissuch as the PGP follow model. open-access informed consent requirements obstruct have noted that research by S & James D. Watson, 146. S. Collins Francis S “ethical imperative” in order to maximize data’s value and best the for the benefit of society. and development promote research requirements have also had a “profoundly negative impact” on research. 30555_cdt_9-2 Sheet No. 134 Side B 08/09/2011 09:04:54 B 08/09/2011 134 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 135 Side A 08/09/2011 09:04:54
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149 (2006), (2006), 5:25
genetics study 3-4
1, 34, 35 (2008). 35 (2008). 34,
. ED M ATURE Genetic Modification and Genetic Genetic and Modification Genetic accurate and reliable their
. 595
in a prostate cancer in so we should so we not rush to 153 , 456 N , 456 150 arch conclusions.turn, this In UMAN the sake of medical advances. for medical and genetic trends. H The vast majority of traits The vast majority (e.g. EVOLUTION R pportunities for discrimination, and 151
If revelation of one’s genetic & .g. cardiovascular disease, colon cancer) .g. cardiovascular 152 ESEARCH R
tion is, the more THICS Misdirected Precaution Misdirected E
. note 140, at 418. HIL their analyses). analyses). their at 4. at 4. supra id. , David B. Resnik & Daniel B. Vorhaus, B. Resnik & Daniel B. Vorhaus, , David , (reporting that 14 institutions involved (reporting that 8/1/2011 e.g. e.g. , 1 P , , ELETE D . See . See id. . See . See C. Balancing Concerns
The more information to which researchers have access, and the Additionally, have some commentators pointed SNP data out that OT 151 149 152 N O M K Determinism study results of communication are. Ease on the Internet could lead to more study participation by a broader group of people, thereby improving data breadth and the robustness of rese more complete that informa information would contribute to medical and scientific advancements that help the general ease of communication comesthat public. But with ease of reidentification, increased o concerns that participants do not fully appreciate the consequences of a balanced be must and harms potential benefits These of a mouse. click so as to not stifle scientific progress in the preservation of individual privacy, nor sacrifice personal rights for prioritize privacy progress over research dealing with when data Indeed,disclosures. genetic determinism—the beliefgenes alone that determine all behavioral characteristics the physical and of of an individual—is a discredited notion. suppressing its not actually reveal that much, then information does medicalrelease and use harms research than it helps an individual’s more be balanced instead least, research and privacy must privacy. At the very “research has to demonstrateof requiring that that public interest the substantially outweighs privacy protection.”
could not pool their data to look for cancer susceptibility genes and instead were limited genes for cancer susceptibility to could not pool their data to look
that have already conducted research studies—with research conducted have already that patient consent— poolingfrom genetic their to look data D 2011]A arise from a complex mixture environmental of many gene products, choice. factors, and individual height, hair color) and diseasesheight, hair color) (e http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1524970/pdf/1747-5341-1-9.pdf. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1524970/pdf/1747-5341-1-9.pdf. 153. Knoppers, Knoppers, 153. has little predictivehas little valueown, on its sharing summaries of sharing summaries 150. et al., Barbara Prainsack C Y 30555_cdt_9-2 Sheet No. 135 Side A 08/09/2011 09:04:54 A 08/09/2011 135 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 135 Side B 08/09/2011 09:04:54 M K C Y PM PM
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179, 191 (2003) (“[W]e are (“[W]e (2003) 191 179, How (Not) to Protect Genomic Protect Genomic How (Not) to . [Vol. 9 [Vol..
155 their genetic remain data would arguments would be relatively geneticsays about contribution NFORMATICS I balancing these competing private tients’ autonomy might still worry Trail Re-identification to Evaluate and Design Design and to Evaluate Re-identification Trail t someone (inside or outside of the r could guarantee that his subjects’
IOMEDICAL B
Even if it could be detected and prevented, rmanent upper hand.” J. L ON TECH. HIGH & TELECOMM. Bradley Malin & Latanya Sweeney, Sweeney, & Latanya Bradley Malin , 37 J. 154 See also See note 120, at 1758. note 120, at 1758. supra 8/1/2011 at 1752. 1752. at ELETE D . Id. A. Addressing Reidentifiability A. Addressing Reidentifiability Ultimately, problems withUltimately, problems human participation in Internet-based Unlike the Tuskegee men, direct-to-consumer Tuskegee men, Unlike the genetic testing as simple as an outright ban on Unfortunately, the solution is not One proposal for addressing restricting the reidentification suggests OT RECOMMENDATIONS 155 N
O Data Privacy in a Distributed Network: Using Using Network: a Distributed Data Privacy in Systems Anonymity Protection genetics research studies lie not in the participation the itself, but in unintended consequences of participation. The primary unintended consequence is reidentification—tha that person. If a study organize identities would remain confidential and research study) will determine not only that a given individual participated, the but what participant’s private, the remaining concerns and benign. For example, advocates for pa theabout truly informed consent in absence of a doctor-patient relationship, or statisticians might bemoan that DTC-GTCs’ solicitation of customers as research subjects is skewing the data pool. reidentification; act of connecting because the the dots from anonymized data to the corresponding individual cannot itself be detected, a ban would be ineffective. technology will always leave enforcers one step behindtechnology will always leave enforcers reidentifiers: “[I]n and reidentification,the arms race between . . . anonymization the reidentifiers hold the pe
154. Ohm, 154. V. D 596 developing more robust . . . re-identification algorithms.”). algorithms.”). . . . re-identification developing more robust subscribers are not insubscribers of danger becoming unwitting participants in a in a non-profit Likewise, subjects untreated syphilis. study on research intentionallyfear being infected need not genetic study consortium’s with hepatitis,the children as were at Willowbrook. Yet the of this members novel for their participants still deserve respect cohort of genetic research protection from to their autonomy, and privacy, deference discrimination. However, ensuring that criteria these are met should not progress. This final of scientific and technological come at the expense approaches to section proposes several and public concerns. flow of (in the instant case, genetic) information such that disclosures 30555_cdt_9-2 Sheet No. 135 Side B 08/09/2011 09:04:54 B 08/09/2011 135 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 136 Side A 08/09/2011 09:04:54
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597 protect participantsenough to reidentification, all of the should be expanded to cover all generated from traditional human EVOLUTION on one’s genetic information. regulators intrinsic build upon could R legislative amendments. ESEARCH R
note 120, at 1768-69. note 120, at 1768-69. Act supra 8/1/2011 1. Expansion of the Genetic Information Nondiscrimination Ohm, at 1770. at 1770. ELETE D . Id. . See B. Legislative Reform
The protections afforded by GINA Expanding GINA in this way will help ameliorate some of the Current federal legislation does not go far enough to protect the Given that the real concerns from study participation concerns from study participation Given that the real from stem OT 157 156 N O M K privacy of participants in online-based genetic research studies.privacy of participants in online-based Some others maynot be made, but reforms should to justify the negative impact could they have on research. This section proposes and analyzes some possible genetic information, including that found in the public domain, such as on the Internet, and information derived via reidentification. Specifically, and at a minimum, GINA should provide protection against the use of genetic information that has been shared in support of a valid research project. effects of reidentification, autonomy and as well as promote personal consumer choice (i.e. individuals still get to make decisions about accessing, or not accessing, their genetic information) while simultaneously boosting participation in research due to the (perceived) protection from discrimination based privacy and discrimination issues attendant suggested reforms below must be considered as attempts in light of, or to risk. mitigate, the reidentifiability In the medical research community, research medical In the networks of trust”“human that already professionals. exist among greatThis is a suggestion for data collegial university, or other at a hospital, projects set subject research institution,is unlikely but it an arms-length to be effective in commercial as 23andMe’smodel such outside with Navigenics’s collaborations or itresearchers. Also, as the Personal is inapplicable to an endeavor such becauseGenome Project, one of the PGP’s goals is to determine the results, both positive and negative, of free and unrestricted public sharing of genetic information. Ifis one of reidentification those results, the certainly want to know.investigators would
occur only to the extent that the benefits that the the extent only to occur privacy. costs to the outweigh D 2011]A C Y 30555_cdt_9-2 Sheet No. 136 Side A 08/09/2011 09:04:54 A 08/09/2011 136 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 136 Side B 08/09/2011 09:04:54 M K C Y PM PM
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is that discrimination is is discrimination is that . [Vol. 9 [Vol.. er could arise. and seek IRB approval before to currently unregulated private d benefits. Selection of subjects insurance companies’ and employers companies’ insurance to employer or insur J. L ON TECH. HIGH & TELECOMM. 8/1/2011 2. Revising the Common Rule 2. Revising the Common ELETE D Currently, theInstitutional Common Rule requires Review Board- The Common Rule could be expanded to include research projects This is likely to be a politically unpopular approach, as it would However, despite the fact that reforming GINA will that reforming despite the fact However, not prevent The weakness in this suggestion, however, however, suggestion, in this weakness The OT N O companies—those that receive no federal funding and do not produce a good regulated by the federal government. The tests offered by DTC- GTCs (and hence the vehicle by which the public participates in one of approval only for institutions that receive federalfunds or who are a private company regulated. Research carried out by otherwise federally a pharmaceuticalthat does not produce product is or other regulated exempt from the IRB requirements. Therefore, a private Internet-based company such as 23andMe, which offers only genetic sequencing and analysis services, is not required to seek IRB approval for the research projects its research arm, 23andWe, undertakes. outsideimplemented by companies currently of the Rule’s reach. Then, like investigators large academic at universities or scientists at pharmaceutical at companies like 23andMe companies, researchers would have to draft research proposals commencing genetic information studies. Their studies would be evaluated to ensure that the risks to the subjects are both minimized and reasonable in relation to the anticipate would need to be equitable and informed consent have to be would obtained. form would need The consent to include a description of risks to the subject, an identification of benefits to the subject or to others, and a statement that participation is voluntary and the subject may withdraw at any time. A statement describing the extent of confidentiality of also have to be included, as the records identifying the subject will existence of adequate provisions for protecting the privacy of subjects and maintaining considered confidentiality of data is one of the criteria by IRBs when they evaluate proposals. greatly expand the scope of oversight “not peek” when“not peek” the information is readily accessible unlikely to be is Additionally,successful. nothing to address GINA does expanding consent and mayinformed mislead even potential research participants into thinking they are that completely protected by the law. reidentification or completely eliminate genetic-based discrimination, the fill in legislative should still be enacted because they proposed changes by an gaps from which abuse hard to prove, and appealing to prove, hard to D 598 30555_cdt_9-2 Sheet No. 136 Side B 08/09/2011 09:04:54 B 08/09/2011 136 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 137 Side A 08/09/2011 09:04:54
, L.
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158 AND & , Jennifer A. Gniady, Note, , Jennifer A. Gniady, , 11 V , 11 ordered personal by one’s e.g. OOD OOD l. Although CLIA governs many l. r the auspices of auspices r the the FDA , 599 See e or misleading. Solberg, e or misleading. , 62 F IncreasedRegulatory OversightGenetic of regulated by the FDA. Several Gail H. Javitt, Gail H. Javitt, ng devastating about one’s geneticng devastating about tests, but critics contend the Commission has the Commission tests, but critics contend EVOLUTION See R note 158, at 2440; Douglas A. Grimm, A. Grimm, Douglas 158, at 2440; note . 2429, 2436-37 (2008). The Federal Trade 2436-37 (2008). . 2429, Overthe CounterUnder But the Radar: Direct-to- EV R supra
ESEARCH L. R
tions of laboratory personne tions of laboratory ion of Both”: Toward ion of Both”: ersight of Genetic Tests of Genetic ersight tic testing, it does not ensure any specific standards for accuracy, accuracy, for standards specific ensure any not does it tic testing, ORDHAM . 107, 121 (2006). (2006). 107, 121 . Update: FDA Taking Another (Public) Look at DTC Genetic Tests FDA Taking Another (Public) Update: DTC research participants face no physical harm or advertisements that may be fals advertisements that may EV 162 R . (Feb. 8, 2011), http://www.genomicslawreport.com/index.php/tag/dtc http://www.genomicslawreport.com/index.php/tag/dtc 2011), 8, . (Feb.
, 76 F , 76 L. EP
require FDAregulation and approval. , 45 C.F.R. § 46.102(i) (2010) (defining minimal risk—which IRBs seek to IRBs risk—which minimal (defining (2010) § 46.102(i) C.F.R. , 45 R , Lauren B. Solberg, , Lauren Note, B. Solberg,
8/1/2011 L. does e.g. what change will be effected? Historically, what change will the “harm” that , 161 ELETE See D . See, e.g. See, . , 41 U.S.F. , 41 Changes to the regulatory scheme do appear to be on the horizon, scheme do appear to the regulatory Changes OT 162 N ENOMICS ENOMICS O M K Regulating Direct-to-Consumer Genetic Testing: Protecting the Consumer Without Quashing a Quashing Without Consumer the Protecting Genetic Testing: Direct-to-Consumer Regulating Revolution Medical Framework: Options for FDA Ov Options Framework: Food and Drug Administration regulates. Administration and Drug Food intrusion; they psychological and emotional spit into a tube. The harm learning somethi that could come from profile—such and fatalcarrying the gene for the aggressive as Huntington’s disease—is extensive no more than if the subject opted only for the testing service and chose not to participate in the study. but even if DTC-GTCs’ to FDA tests become subject and if regulation, the companies are required to seek IRB approval research for their studies, alternatively, DTC geneticalternatively, tests could be by the regulated Clinical of 1988 (“CLIA”). Amendment Improvement Laboratory IRB committees look for, IRB committees look and try to ensure that investigators minimize, is physical harm. Consumer Genetics Tests and FDA Regulation of Medical Devices Regulation and FDA of Tests Medical Genetics Consumer of the tangible aspects of gene of the tangible reliability, or clinical validity. Gniady, Combinat CLIA,a “Reasonable or Testing physician physician because a similarbecause a (if not as comprehensive) test scholars have argued for the tests to fall the tests argued for have scholars unde are not safe or testing services DTC genetic have been concerned that Scholars 158. and even have suspect validated, or analyticallyefficacious, have not beenclinical clinically utility. their researchtheir currently are studies) not D 2011]A (2007). information tests designed to provide that perform 159. laboratories all CLIA governs control reagents, quality health. Specifically, it aims to regulate protocols, about a person’s procedures and even the qualifica 711, 720, 722 (2009). More problematic is that no federal agency is responsible for ensuring federal agency is responsible for ensuring no More problematic is that 711, 720, 722 (2009). any particular quality standards. that the tests meet Commission can regulate advertisement of DTC can Commission not action against taken Vorhaus, Dan 160. If regulated, DTC genetic tests would likely fall under the guise of medical devices, which the medical devices, which the guise of likely fall under the If regulated, DTC genetic tests would (reporting that the FDA announced a public meeting, set for March 8, 2011, to discuss DTC DTC 8, 2011, to discuss meeting, set for March (reporting that the FDA announced a public genetic tests). 161. of the Common Rule. or via expansion of FDA regulation consequence direct occur as a could This achieve—as “mean[ing] that the probability and . . . anticipated in the magnitude of harm . . . daily life or during greater . . . than [that] ordinarily encountered in not research [is] examinations”). or psychological routine physical G C Y 30555_cdt_9-2 Sheet No. 137 Side A 08/09/2011 09:04:54 A 08/09/2011 137 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 137 Side B 08/09/2011 09:04:54 M K C Y PM PM
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might harm The consent 23andMe Sarcoma in DTC-based 168 especially those 166 and 164 note 46 (offering genetic . [Vol. 9 [Vol.. supra , However, this is qualified the list of possible adverse nt form already meets the 169 risks . . . may presently be risks . . . may d be amended to eliminate these research study, IRBs would have to note 43. note 43. note 137, at 363. 363. note 137, at
J. L ON TECH. HIGH & TELECOMM. supra 170 , e and sarcoma patients, which could be considered coercive). could which patients, e and sarcoma supra riven Revolution in Sarcoma Research in Sarcoma riven Revolution ) Only under a much broader conception of 163 Part V.D. Part V.D. Ultimately, then, the Common Rule’s “limited conception the Common Rule’s “limited conception Ultimately, then, 23andMe Parkinson’s Community: Strength in Numbers
) and the benefits participant to the or others. 8/1/2011 165 167 Conley et al., Conley at 364. at 364. at 363-64.
ELETE D . Id. infra . See . But see . But . Id. . Consent Document . Consent . See . Id. . Id. Proper informed consent Proper informed an important criterion for gaining is also The Common Rule’s IRB provision or already applies to academic OT 166 167 163 165 168 164 169 170 N O
IRB approval. 23andMe’s online conse requirements for identifying risk to therequirements for identifying risk subject (although it could be beefed up attendantto reidentification. However, those harms are “difficult to “most significantforecast” and the unknown.” Community: A Patient-D
(Because DTC-GTCs(Because study recruit participants existing via their consumer potential pool, all participation of study consequences must be genetic testing only the to a baseline of receiving compared service, rather using “no geneticthan by testing” it to and comparing as a baseline participation study that includes in a information genetic discovering about oneself. D 600 research proposals by DTC-GTCs be denied by IRBs based on by IRBs based be denied proposals by DTC-GTCs research “unjustifiable harm” grounds. That is, to add genetic discrimination and other social harms, consequences from participating in a
by acknowledging that it takes time to withdraw, and participants’ genetic informationbeen used that has already for research purposes cannot be withdrawn. research. of risk leaves it ill-equipped to protect human subjects” form also participation is voluntary includes the requisite statement that and the subject may withdraw at any time. otherwise publicly-funded research consortiums, except when data is otherwise publicly-funded research collected from is from subjects that the public domain or when the data the fallacy of the claim that subjectscannot be identified. We have seen “cannot” be identified, so the Rule coul (the public domain and de-identified However, information) exceptions. to analyzeif follow-on investigators want existing data that was previously collected for a different purpose, these proposed amendments originalwould prohibit that use because the data contributor (the human testing and research enrollment for free—compared to at least $199 for the standard testing for the standard and research enrollment for free—compared to at least $199 testing diseas kit—for Parkinson’s 30555_cdt_9-2 Sheet No. 137 Side B 08/09/2011 09:04:54 B 08/09/2011 137 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 138 Side A 08/09/2011 09:04:54 PM PM
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Furthermore, the 172 ta, and that is certainly 601 be linked to some personal subject and those who might try text accompanying notes 147-149. 147-149. notes text accompanying EVOLUTION R who work with the subject’s genetic See supra See ESEARCH R
note 120, at 1705. note 120, at 1705. The follow-on investigatorwould then have plan to and Part IV.B. 171 such that genetic data must supra 8/1/2011 173 1. Stewardships ELETE D . See supra . See C. Protective Approaches As mentioned earlier,“the utility and privacy of data are intrinsically Other approaches to safeguarding genetic privacy, while still Overall, these changes to the Common Rule could restrictOverall, these changes research
OT 172 N O M K connected” promoting research, attempt to add an additional layer of protection either between a subject and those information (stewardships) or between a amendments would do nothing to prevent reidentification,could and thataddress it only if and to the extent IRBs weighed it as a harm. Finally, not address or attempt the proposed changes also would to prevent genetic discrimination. to force revelation of a subject’s identity (Certificates of Confidentiality). below. These approaches are explored in turn
execute her study, own for academiccould be cost-prohibitive which researchers already struggling for research Additionally, funding. if even not a factor, increasingcost were the number of studies the also increases amount for the chances which thereby increases data collected, of da of that of privacy and confidentiality breaches not a beneficial solution. counterbalancing privacywithout enough protections to justify the stifling effects. Having seek research approval from to an IRB would force DTC-GTCs to create comprehensive research proposals and theirpart, startedfor consent documents,if the IRBs, informed and considering reidentification harms, the and its consequences as potential resulting documents could robust. Yet informed consent be quite knownprocedures are already to inhibit research. 171. problems. similar HIPPA creates Ohm, 173. subject) most likely did not consent to the use of his the use to not consent likely did most subject) a in information second study. D 2011]A information in order to benefit research. Researchers often use codes to keep a subject linked (keyed) to his or her data (i.e. genetic information) without employing a ready identifier name. such as the subject’s The goal of these systems is to maintain privacy without completely losing the importance and value of linked information. C Y 30555_cdt_9-2 Sheet No. 138 Side A 08/09/2011 09:04:54 A 08/09/2011 138 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 138 Side B 08/09/2011 09:04:54 M K C Y PM PM
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176 179 to obtain access to note 143. . [Vol. 9 [Vol.. ss other privacy concerns supra Specifically, may researchers 177 Although this approach keeps this approach Although independent third parties should In a 1973 murder investigation, a to connect research to the subjects 175 Although stewardships are more of ivacy that they do not create a viable 178 Certificates of Confidentiality and the Compelled Disclosure of of Compelled Disclosure the and Confidentiality of Certificates J. L ON TECH. HIGH & TELECOMM. 1054, 1054-55 (2008). 1054-55 (2008). 1054, note 137, at 347 (internal citations omitted). (internal citations note 137, at 347 supra note 70, at 33; Ingelfinger & Drazen, 33; Ingelfinger 70, at note 70, at 33. note These stewards of the identifying linkages would not would linkages identifying of the stewards These CIENCE A defense attorney was able A defense attorney was able 174 supra supra 180 8/1/2011 2. Certificates of Confidentiality , 322 , 322 S
ELETE D . Id. More importantly, stewardships do nothing to address research studiesCertificates of Confidentiality for using genetic Some writersSome that suggested have However, the strength of Certificates was tested again in 2006 with was tested again in 2006 However, the strength of Certificates OT 178 N O only hold theonly hold but “turn” keys, them, usingto “run queries that them have passed independent ethical scrutiny.” any individual researcher or group of researchers researcher or any individual (e.g. collectors, sample DNA sequencers, data analyzers) knowing from it is “too much,” “misconductinclude These breaches may breaches. to securityvulnerable by the person who retains. . . , theft of the key by hackers, and the key that contain the keys.” devices or other storage the loss of laptops 175. Taylor, Taylor, 175. 174. Taylor, Taylor, 174. 176. Conley et al., D 602 reidentification. Possessing make reidentification a key would actually much easier, as the point of a key is balance between the two. information are another which participants’means by confidentiality allow researchers to protect could be (partially) protected. Certificates “withholding from all persons not the privacy of their subjects by connected with the . . . researchnames or other identifying the characteristics” study of the participants. samples they contribute, and lacking not prevent the key would reidentification. do not addre Stewardships also such as improving informed consent and autonomy or reducing the potentialdiscrimination. for genetic an inconvenience to researchers rather than an actual impediment, they do so little, inpr practice, to protect not be compelled by law enforcement officials or in the contextnot be compelled by law enforcement of any legal proceeding to identify subjects. Certificate successfully prevented disclosure of drug treatment program participants despite a grand jury subpoena for their photographs. hold the keys. hold of adjudication 1973) (vacating 651, 657 (N.Y. N.E.2d People v. Newman, 298 179. New York City Methadone director of the Dr. Robert Newman, then contempt against for refusing to comply with subpoena). Maintenance Treatment Program, 180. Laura M. Beskow et al., 177. (2006). § 241(d) 42 U.S.C. Research Data less success. 30555_cdt_9-2 Sheet No. 138 Side B 08/09/2011 09:04:54 B 08/09/2011 138 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 139 Side A 08/09/2011 09:04:54
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(GWAS) (2007), (GWAS) BTAINED IN O ATA TUDIES antly recognize that S D 603 HARING OF HARING SSOCIATION S A EVOLUTION R IDE -W
we must concomit OLICY FOR note 75, § 8. 75, § 8. note 182 ESEARCH R , P
More importantly, the utility of Certificates ENOME supra , G 185 EALTH note 180, at 1054. note 137, at 349. note 137, at 349. H In fact, most DTC-GTCs clients warn their that 184 supra OF OF supra . Part V.B.2 (suggesting an expansion of the Common Rule to cover an expansion V.B.2 (suggesting Part ONDUCTED ONDUCTED Terms ofService C NSTS The court clearlyunfamiliar with was and Certificates I ,
8/1/2011 181 L ’ 186 e.g.
, http://grants.nih.gov/grants/guide/notice-files/NOT-OD-07-088.html. http://grants.nih.gov/grants/guide/notice-files/NOT-OD-07-088.html. AT 183 ELETE D . . supra But see . See D. Interactive Informed Consent If we acknowledge the real threat of reidentification, but also that it Perhaps before courts can be expected to uphold the unimpeachablebe expected to uphold courts can Perhaps before In the context of research studies by DTC-GTCs,In the context however, OT 184 185 N O UPPORTED OR OR UPPORTED M K their intended imperviousness. they may disclose information, including genetic information, personal if required to do so by law. 181. 2006). 260 (N.C. 258, State v. Bradley, 634 S.E.2d N 182. 183. Beskow et al., S information about his client’s participation his about information study,a research in which had included collectioninformation,genetic of a under conducted Certificate. D 2011]A genetic to breaches of privacy and research participants are vulnerable anonymity. To ensure that the participants themselves are fully aware of this vulnerability, enhanced informed consent procedures should be implemented by Internet-based research First, studies. to approach full is almost impossible to stop, available at available up the approval for research, and therefore opening thus requiring IRB DTC-GTCs, of Confidentiality). Certificates availability of 186. Conley et al., for online-based geneticfor online-based research studies will be limited the because greatest risksand confidentiality to individual privacy from come reidentification by technologically savvy computer users rather from than zealous attorneys. The request of a bioinformatician who demands that study participants be reidentified may be denied due to the presence of a botherCertificate, but one who does not be to seek permission will not thwarted. Additionally, Certificates the privacy concernsdo not address reducingof promoting informed consent and genetic discrimination. to underwriteOverall, Certificates are “insufficient absolute privacy promises.” Certificates will usually be unavailable because they are limited to IRB- be unavailable because they Certificates will usually approved research. status of Certificates, additional legislation, and education, is necessary. status additional of Certificates, is necessary. and education, legislation, theHowever, NIH still puts faith in their effectiveness and “explicitly encourages investigators” againstto obtain a Certificate as protection of participantscompelled disclosure association in genome-wide studies. C Y 30555_cdt_9-2 Sheet No. 139 Side A 08/09/2011 09:04:54 A 08/09/2011 139 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 139 Side B 08/09/2011 09:04:54 M K C Y PM PM
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and therefore and therefore talks one-on-one note 37. supra . [Vol. 9 [Vol.. , procedures can decrease ENOMICS were required to have advanced were required to G tic counselors pre- or post-testing, but the but the tic counselors pre- or post-testing, prominently displayed—perhaps in to ensure that they fully appreciated which may even be the most significant even be the most which may ATHWAY ATHWAY 187 or research consortium who
190 J. L ON TECH. HIGH & TELECOMM. 189 Part IV.B (noting that consent IV.B (noting that consent Part text accompanying note 165. 165. note text accompanying 8/1/2011 at 354. at 354. ELETE Second, these risks Second, be must D . See supra . See supra see But . . Id. 188
Less radical, and more in sync with theLess radical, and more in sync with online environment, is to The first ten enrollees in the PGP The first ten enrollees Another way to ensure that potential subjects fully appreciate the OT 188 189 187 N O leave consent procedures solely online, but implement somethingleave consent procedures solely online, more robust than click-through forms. Currently, for example, a subject views a scroll-through screen full not of caveats which he or she likely does read before clicking the “I Consent” button at the bottom. Instead, subjects could be prompted to type a provided thatsentence expresses comprehension of risk: “I, [enter your name],by understand that participatingprivacy in this study, and anonymity of my genetic and that someone, not authorized by information cannot be guaranteed me, may figure out that I participated in this study and may learn the which could lead to discriminationcontent of my genetic information or other negative effects.” bias data sets). sets). bias data 190. testing company DTC genetic currently appears to be the only Pathway Genomics gene access to its customers with that provides arm. P not have a research company does
with the subject, evaluates comprehension of possible risks, and answers questions. bolded text and all capital letters like waivers of liability are required to are required and all capitalbolded text waivers of liability letters like buriedhave—not in the fine print of privacy policy. an unread ones.
comprehension of risk, ignorance of risk must be acknowledged. comprehension acknowledged. must be of risk risk, ignorance of Informedmust fully documents consent known only all not disclose risks, including and genetic discrimination, reidentification but also state that there are risks, unknown D 604 the risks of their genetic informationthe risks of their genetic made publiclybeing available. The next wave of PGP subjects submit must to a lengthy and stringent screening to help ensure including an entrance exam, process, that they are similarly aware of the with public access to their risks associated and DTC-GTCs Other research consortiums genetic information. could also be required a screening to include for process or entrance exam their study participants. degrees in genetics or similar fields risks of participating is to prohibit companies from enrolling participants solely via the Internet. Interested individuals would be required to contact, preferably by phone rather than email, a genetic counselor on staff at the DTC-GTC 30555_cdt_9-2 Sheet No. 139 Side B 08/09/2011 09:04:54 B 08/09/2011 139 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 140 Side A 08/09/2011 09:04:54 PM PM
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dures do not stop dures do not stop then can we realize a true 605 procedures strike a balance procedures strike the expansion of the Common
ntific, and evenbioinformatics EVOLUTION R these enhanced requirements are not 191 ESEARCH R
note 137, at 354. note 137, at 354. supra Additionally, although these proce inhibit research, 192 Part IV.B. Part V.B.2. Part V.B.2. 8/1/2011
ELETE 193 D . See supra . See . See supra . See Overall, enhanced informed consent Overall, enhanced The PGP is already usingPGP is The interactive a similarly multiple tool, the
Both public and private Internet-based research studies provide the Both public and private Internet-based OT 191 192 N O M K reidentification or genetic discrimination, do acknowledge they those potential adverse consequences. as Armed with as much information participants are less possible, research likely to suffer “post-enrollment regret.” Rule could be. nearly as burdensome on researchers as nearly as burdensome
D 2011]A
193. Conley et al., between protecting privacybetween protecting research. and promoting Although consent procedures can choice quiz, which interested participants interested quiz, which choice perfectly complete must before being considered for enrollment. DTC-GTCs and researchconsortiums theaside from PGP could employ comparable questionnaires online that are designed to test comprehension participation. of risk of study completionSuccessful of these quizzes ensure that interested would help subjects read privacy statements consent forms and the well enough to appreciate the risks of their participation. advancements, participation should not be prohibited, but rather should be protected where possible and fully informed where protection is not possible. At a minimum, Congress should expand GINA to cover all genetic information, More importantly, no matter how it is obtained. more robust enrollmentonline research studies should implement procedures based on full disclosure of known potential risks (plus acknowledgment that others active, are unknown) and even interactive, Only acceptance of those risks by participants. research revolution. CONCLUSION opportunity for individuals to contribute their genetic information to but the Internet also providesscientific and medical research projects, an environment in which individual privacy and anonymity almost are so much can beimpossible to guarantee. Because gained from genetic research inthe way of medical, scie C Y 30555_cdt_9-2 Sheet No. 140 Side A 08/09/2011 09:04:54 A 08/09/2011 140 Side Sheet No. 30555_cdt_9-2 30555_cdt_9-2 Sheet No. 140 Side B 08/09/2011 09:04:54 M K C Y 30555_cdt_9-2 Sheet No. 140 Side B 08/09/2011 09:04:54 B 08/09/2011 140 Side Sheet No. 30555_cdt_9-2