42655-cre_54-1 Sheet No. 1 Side A 12/15/2020 11:16:45 2020 Vol. 54, No. 1 SCHOOL OF LAW OMAHA, NEBRASKA CREIGHTON UNIVERSITY M K \\jciprod01\productn\c\cre\54-1\tit541.txt unknown Seq: 1 7-DEC-20 13:47 C Y 42655-cre_54-1 Sheet No. 1 Side A 12/15/2020 11:16:45 12/15/2020 A 1 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 1 Side B 12/15/2020 11:16:45 M K C Y AULEY IMANEK ANELLI C TEELE C ARSH B S M H A. S EAL ATHEWS ON IELKE AURA NDERSEN D L ICHOLAS L. R A M DDISON N USTICE A M. M J ARAH ANIEL S D APPHIRE EANNA S D OWELL TAFF TAFF DITORS D OZEL ANAGER ACHAU ORGAN DVISOR RNOLD AMILTON S ARQUHAR C RILEY ESTHOFF S S K E F A M K W E. A A. H R. M J. M IANE ATALIE ILEY ICHOLAS ENERAL D N EAU AITLYN Editor-in-Chief DITORIAL R ACULTY N ALLIE B G OARD OF ACQUELIN K USINESS ANIEL E F J H B D B REENE ORVELL G ANTHACK NOEPFLER AMPTON R. N -H ASS A. K AGEN OTH UGGAN C. K ORTON H T D N Executive Editor Executive Editor HOMAS ALLIE AROL HRISTOPHER M. H T C C C PPLEGATE OBERT Senior Executive Editor Research Editor RANKIE OBERT R RIC F A Senior Lead Articles Editor Executive Editor IMBERLY R E K Student Articles Editor Student Articles Editor Student Articles Editor RYSTA K \\jciprod01\productn\c\cre\54-1\boe541.txt unknown Seq: 2 7-DEC-20 13:47 42655-cre_54-1 Sheet No. 1 Side B 12/15/2020 11:16:45 12/15/2020 B 1 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 2 Side A 12/15/2020 11:16:45 1 19 41 87 147 107 James Hart Brian Fletcher April Xiaoyi Xu Dane D. Sowers Michael Conklin Jonathan B. Brown ..... EARS ...... Y AX : NALYSIS T IFTY EDERAL S ’ ERITAGE LEARING A ...... ARTICLES F F ...... S N IFTY ?— ’ H : C IRTUAL F HE : A ROADBAND EALTH RIVACY IN ...... IVES V : T B RANCE P L OTICE ” W NOTHER URNS ET IBERTY F ROTHER OMMISSION ...... N T A L N TATE B AVES C IGITAL IG ORTH S ORONAVIRUS LEA S D B P W C ROAD ROPER EGULATION URROUNDING B ET ARKING P ESERVES ONSTITUTIONAL R S NGLAND AND C M D HAT IF “N ONFLICTING LFORD T OG IME OF E A I C W OF THE FROM THE F T THE HY UR ON OR NSURING UT OMPARATIVE ASTING A OMMUNICATION ATENT HE REEMPTION OF URVEILLANCE NTERNET M K O C C E B W C P S T C P I \\jciprod01\productn\c\cre\54-1\toc541.txt unknown Seq: 3 7-DEC-20 13:47 C Y 42655-cre_54-1 Sheet No. 2 Side A 12/15/2020 11:16:45 12/15/2020 A 2 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 2 Side B 12/15/2020 11:16:45 M K C Y . Microfilm editions NIVERSITY HeinOnline U REIGHTON C Y (ISSN 0011—1155) is published four times a 2020 B © Creighton Law Review School of Law 2133 California Street Omaha, Nebraska 68178 (402) 280-2815 Publication office: Joe Christensen, Inc., OPYRIGHT 1540 Adams Street, Lincoln, Nebraska 68521 Periodicals postage paid at Omaha, Nebraska C and additional mailing office at Lincoln, Nebraska CREIGHTON LAW REVIEW POSTMASTER: Send address changes to: The are available from NA Publishing Inc., P.O. Box 998, Ann Arbor, MI 48106-0998. year in December, March, June and September by the students of the Creighton year in December, March, June and September St., Omaha, NEUniversity School of Law, 2133 California 68178. Subscription prices are $30.00 per annum. 2350 Past issues are available from William S. Hein & Co., Inc., North Forest Road, Getzville, N.Y. 14068 and through \\jciprod01\productn\c\cre\54-1\toc541.txt unknown Seq: 4 7-DEC-20 13:47 42655-cre_54-1 Sheet No. 2 Side B 12/15/2020 11:16:45 12/15/2020 B 2 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 3 Side A 12/15/2020 11:16:45 Provost President General Counsel Vice President for Vice Provost for Academic Vice Provost for Student Life Vice President for University Administration and Operations Communications and Marketing University Mission and Ministry University Mission and Vice Provost for Global Engagement Vice Provost for Global Executive Vice President of Operations Executive Vice President .D...... H Vice Provost for Enrollment Management Vice Provost for Enrollment Vice Provost for Health Sciences Campuses ., P A. A., Professor of Law & Ethel Yossem IV .... Professor of Law Associate Professor of Law and Frank J. Kellegher ...... Professor of Law Professor of Law Vice Provost for Institutional Diversity and Inclusion Vice Provost for Institutional Diversity and FACULTY Director of the Werner Institute Assistant Professor of Law and Director of the Werner Professor of Law Interim Director of the Law Library Professor of Law Director of Health Law Programs Associate Professor of Law and Director of Health Law , Professor of Law and Senator Allen A. Sekt Endowed Assistant Professor of Law Assistant Dean for Admissions Associate Dean for Student Affairs and Administration ...... Lillis Family Professor of Law Director of Legal Research & Writing Assistant Professor of Law and Director of Legal Research .D...... D., .D., Dean and Professor of Law ...... Director of Planning, Budget, & Assessment D H H SCHOOL OF LAW SCHOOL OF Professor of Law Associate Dean for Academic Affairs Associate Dean for Career Development Skinner Family Endowed Professor of Law Director of the Abrahams Legal Clinic ...... D...... , J.D. , M.S., S.T.D. .D., R.N., FAAN H Director of Development .D...... H , B.A. , B.A., J.D., .D...... S.J., B.A., M.A., M.D D , B.S., J.D., LL.M., , P ADMINISTRATIVE OFFICERS ADMINISTRATIVE H , P , B.A., M.A., J.D., , B.A., J.D., Professor of Law , B.A., J.D., LL.M., CREIGHTON UNIVERSITY CREIGHTON Director of Finance , B.S., J.D., , B.A., J.D., , B.A., J.D., .D...... , B.A., J.D., B.C.L., S.J.D., , B.A., J.D., LL.M., , P , B.S., M.S., J.D., , B.S., M.S., J.D., HARRAR , B.A., J.D., H HITT ULLIVAN , B.A., M.S., , B.A., J.D., LL.M , B.A., J.D., LL.M., S , B.A., J.D., , B.A., J.D., ERSHEE , B.S., J.D., M.L.S., , B.S., M.S., E , R.N., J.D., P , R.N., J.D., P -S , B.A., J.D., , B.S., J.D. RIGHT , P , B.A., J.D., ROOKS , B.A., M.A., J.D., , B.A., J.D., ODERO , A.B., M.S., J.D., , B.S.B.A., C.P.A. , M.S., E F ´ E , B.S., W ANEMAN ELLY REAL M. W , B.A., M.S., IRMINGHAM ORCHERS ACK OT ANGRUM OEDKEN OEDKEN ENDRICKSON ERSHEE URKE INEGARD ILSON G NDERSON ALLON ALLON INEEN INEEN NOEPFLER NOEPFLER RUNDO RUNKEYMEYER M. B M. T ANSEN HASE C UARD AYE ORCHERS ADILLA AYDEN M , B.A., J.D., HIDDON OHNSON ADSEN W J. H J. K ADSEN K F CHIMIYA J. B AUER J. B B H A. C J. G J. G J. M P. F OX C S. H C. B W A. B A. W C. K C. K K. D K. D S. J M. A U M W. D W. D B W. G E. C F L. P E. M C. J M OLLIN Endowed Chair in Legal Ethics Professor of Trusts and Estates Programs Chair in Law Institute & Writing D. M ICHAEL ANDY ARDELL ARY EIDI AVID IANE RISTIN ELLY ENDRA ELLY ANIEL ICTORIA AROL ANETA AROL DWARD ATHERINE RAIG ACHEL ATHERINE HRISTOPHER RAIG ICK ARBARA HRIS ACHEL ILEEN ENE AUL ERRY ATRICK RICIA ANYA ATRICK ROY AMES OSHUA AN RINA M K M J H T C C M R J T J E V M C R R. C P C D D T E P C K C K K I R C R B M C P K R T D \\jciprod01\productn\c\cre\54-1\fac541.txt unknown Seq: 5 7-DEC-20 13:47 C Y 42655-cre_54-1 Sheet No. 3 Side A 12/15/2020 11:16:45 12/15/2020 A 3 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 3 Side B 12/15/2020 11:16:45 M K C Y , B.A., J.D. , B.S.B.A., J.D. , B.S., J.D. , B.S., J.D. , B.A., J.D., LL.M. , B.A., J.D. , B.S., J.D. , B.A., J.D. UNGE AGONER , B.A., J.D. , B.A., J.D. , B.S., J.D. , B.A., J.D. , B.A., B.S., J.D. ILLIS ) W , B.S.B.A., J.D. R. R ORRENTINO LEINE AW DIANNE LOENNIG STODDARD HOMAS ICK ILSON UENNING ONNOR UITER ANGIAMELI TARK P. W J. S J. L ARTENS L. T (M W. K S ATRICK O’C M B. K L. W P. S . P C. M ARY ON ONALD OUGLAS ATIE DAM NN NTHONY OBERT HOMAS HERMAN EAN EFFREY AMES Professor of Law .D., H Professor of Law LECTURERS Professor of Law and James L. Koley Professorship in Professor of Law and James Professor of Law D., J.D. S Professor of Law and McGrath, North, Mullin & Kratz Law and McGrath, North, Professor of Professor of Law Assistant Professor of Law Assistant Professor of HARM Assistant Professor of Law and Connie Kearney Endowed Assistant Professor of Professor of Law , B.A., M.A., H , B.A., M.A., J.D., P , B.S.B.A., J.D. R ANIELS , B.S.B.A., J.D. A , B.A., P , B.A., J.D., LL.M., , B.A., J.D., LAW SCHOOL ADVISORY BOARD , B.A., J.D. D , B.A., J.D. A , B.S., J.D. D , B.S.B.A., J.D., , B.S.B.A., , B.S.B.A., J.D. J ALD , J.D. S , B.A., J.D., , B.A., J.D., W HITE , B.A., J.D., LL.M., , B.S.B.A., J.D., , B.A., J.D., LL.M., E , B.A., J.D. K ORSE C. R. D IEBERSON , B.A., J.D. T , B.S., B.A., J.D. M EADLE ARRETT EAL , B.A., J.D. J EBER ENNINGER ATTS EPLY URT LAWSON EIL ATENHORST EUMEISTER M. W S. D ITTMAN H REDTHAUER C. S B CHIMIYA USER A. M J. B D. B ATCH ERNON D L. R B L. T U P. W S. C H J. N R. B P. H M. W H . V J.D. A Endowed Chair in Business Law Endowed Chair Constitutional Law Chair in Clinical Legal Education Chair in Clinical Legal ALLORY ICHAELA ON ARY ANIEL ELLI ENT ANIEL IANE AVID RENDA RAIG DWARD RUDY ERRANCE ARRY ATRICK TEPHEN EAN ACHARY OEL OHN M T J Z G K B T H J C D SCOTT DOSEKRAYMOND FEHRINGERTHOMAS GAUGHENRICHARD GILLOON NEVEN MULHOLLANDTHOMAS GRENNANLISA ANDRUS HAYAN MICHAEL MULLIN RAYMOND MCGAUGH MICHAEL WALLACE MAUREEN O’CONNOR, JR. Y. KAMAAL PATTERSON JUDITH TWIDWELL POGGE HON. HORATIO WHEELOCK MARY VANDERNACK PATRICIA ZIEG GAIL WERNER-ROBERTSON HON. JOSEPH BATAILLONHON. FRED BATES WILLIAM HARGENSROGER BLAUWETPATRICK COOPER HON. ROBERT ROSSITER, JR. LISA ANDRUS HAYANIRMER CYNTHIA MCCORMACK THOMAS STEVE SELINE SILHASEK JAMES E K D S L D S D M P \\jciprod01\productn\c\cre\54-1\fac541.txt unknown Seq: 6 7-DEC-20 13:47 42655-cre_54-1 Sheet No. 3 Side B 12/15/2020 11:16:45 12/15/2020 B 3 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 4 Side A 12/15/2020 11:16:45 has yet Editor in Chief Hallie Hamilton . Creighton Law Review Creighton Law Review rising voices and trusting the editorial staff to provide and trusting the editorial staff to RISING VOICES Creighton Law Review In each issue, we will recognize one of these professors. We will will recognize one of these professors. In each issue, we unique opportunity to recognize When we considered the journal’s of Volume 54, along with the As you read this and future issues Here’s to the next generation of Volume 54 may be the best volume Volume 54 may be M K had the privilege to publish. The 2020-2021 academic year feels spe- to publish. The 2020-2021 academic had the privilege and edited in the journal been spaded, cite-checked, cial. Not only has the time of COVID- the social-distancing necessary in compliance with professors: honor three recently retired Creighton 19, this year we will Kenneth Melilli, and Catherine Mahern. Michael Fenner, including a tribute from someone honor their legacy at Creighton by a respected member of the legal who is a friend of the professor and 54, Clarence Thomas, Associate Jus- community. In Issue 1 of Volume Court, has provided a tribute to tice of the United States Supreme will be honored in Issue 2, and Professor Fenner. Professor Melilli in Issue 3. Professor Mahern will be honored in thousands of law students and these professors for their investment next generation of legal minds, we their commitment to developing the giving it some thought, we de- wanted to do something unique. After legacy was to make our own in- cided the best way to continue their by intentionally publishing young vestment in the next generation scholars. you’re accustomed to seeing, you esteemed and well-published authors are recent law school graduates may notice that some of these authors the articles of these young authors and current students. We selected their submissions, it was apparent because, based on the quality of generation of legal scholars.that they are rising voices, the next The Volume 54 author for partnering Editorial Board is grateful to each with a professional process aimed at excellence. \\jciprod01\productn\c\cre\54-1\edn541.txt unknown Seq: 7 7-DEC-20 13:47 C Y 42655-cre_54-1 Sheet No. 4 Side A 12/15/2020 11:16:45 12/15/2020 A 4 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 4 Side B 12/15/2020 11:16:45 M K C Y \\jciprod01\productn\c\cre\54-1\edn541.txt unknown Seq: 8 7-DEC-20 13:47 42655-cre_54-1 Sheet No. 4 Side B 12/15/2020 11:16:45 12/15/2020 B 4 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 5 Side A 12/15/2020 11:16:45 HOMAS T LARENCE C A TRIBUTE TO A TRIBUTE USTICE J PROFESSOR MICHAEL G. FENNER PROFESSOR I first met Professor Mike Fenner in the spring of 1986. A family Mike Fenner in the spring of I first met Professor saw each other over the fol- After that first meeting, we routinely Circuit I gave my first talk at When I became a judge on the D.C. Sometime in 2000, Professor Fenner broached the idea of jointly My wife, who had been one of his students, often said that he was M K friend of my wife to be, Virginia Lamp, and her family had a small to be, Virginia Lamp, and her friend of my wife Among the to celebrate our upcoming marriage. reception in Omaha favorite professors from Creighton attendees were several of Virginia’s one of them. Somehow, we gravi- Law School. Professor Fenner was spent much of the reception tated toward each other, and eventually talking on the porch. visited Omaha regularly, and more lowing years. In those days, we wife, Anne, at their home, or with often than not visited him and his the faculty recruiters for the law him at the law school. As one of traveled annually to Washington, school, Professor Fenner usually him on those visits. D.C. We invariably had dinner with at the behest of Professor Fenner. Creighton Law School in 1991, Court in 1991, he wrote me When I was nominated to the Supreme Though barely legible, they were encouraging notes on a regular basis. seemed to arrive during some of the invariably uplifting. They always on random letterheads, napkins, or most challenging times, written to lift our spirits. Though I had been postcards. They usually managed from mine, ours was a friend- told that his views were quite different transcended personal opinions ship that, as fraternal bonds should, company and respected each and views. We enjoyed each other’s views. other’s independent thoughts and teaching a weeklong course at Creighton. I agreed. I was not an exper- be- ienced teacher, but, mercifully, he was an outstanding one. Thus we gan almost two decades of teaching together. From 2001 to 2019, taught biannually. of a fair, evenhanded, and thoughtful man who went beyond the call duty to help his students. Because of this, he was one of her favorite professors in law school. That was the explanation for his attendance I at the reception celebrating our impending wedding in 1986. Now, we saw those attributes on full display in the classroom. Whether were eating sandwiches in the office, having breakfast at his favorite diner, enjoying a potluck dinner with students at his home, or working \\jciprod01\productn\c\cre\54-1\trb541.txt unknown Seq: 1 13-NOV-20 12:12 C Y 42655-cre_54-1 Sheet No. 5 Side A 12/15/2020 11:16:45 12/15/2020 A 5 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 5 Side B 12/15/2020 11:16:45 M K C Y Though I was led to believe that we might be very different in our to believe that we might be very Though I was led decades, and I Fenner for more than three I have known Professor Professor Fenner for his friend- I extend my heartfelt gratitude to together in the classroom, he was consistently warm, engaging, intel- warm, engaging, he was consistently in the classroom, together and insightful. lectually honest, were on display as law, no such differences approach to Constitutional knowledge and to be honest and help students gain we simply tried about the stu- as it should always be in school, confidence. It was, to students honesty, decency, and total dedication dents, not us. His on display when heart of his work. It was certainly was always at the in our class as then hire, one of the students he asked me to consider, accurate. The stu- his judgment was once again a law clerk. Of course, law clerk. dent was an outstanding our two decades co-teaching the certainly count him a friend. I count a joy. It was made all the more joy- short Constitutional Law seminar outstanding professor. I will always ful because of this good man and Selfishly, I will truly miss teach- treasure the time we spent together. Professor Fenner. And, though I ing our class and interacting with retirement, Creighton Law completely understand his well-deserved who is truly a gentleman School will lose one of its finest professors a teacher of the first order. I will and scholar. The students will lose with him. lose the special opportunity to teach us all better people and better stu- ship and all he has done to make appreciate his decision to retire, I dents of the law. And, though I have the benefit of his teaching and regret that more students will not the classroom with him. I wish him that I will not be able to stand in with his wonderful family. all the best as he spends more time \\jciprod01\productn\c\cre\54-1\trb541.txt unknown Seq: 2 13-NOV-20 12:12 42655-cre_54-1 Sheet No. 5 Side B 12/15/2020 11:16:45 12/15/2020 B 5 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 6 Side A 12/15/2020 11:16:45 4 2 6 3 1 . 1, 13 , 13 L. Alford EV . L. R OLUM the United States 1 , 79 C , plea arguments are † Alford ONKLIN PLEA C ICHAEL M ALFORD In the nineteenth century, more complex In the nineteenth century, more PLEA TURNS FIFTY: WHY PLEA TURNS North Carolina v. Alford North Carolina v. Plea Bargaining and Its History 5 Understanding the Short History of Plea Bargaining pleas offer to defendants, victims, the criminal justice pleas offer to defendants, victims, ALFORD . 261, 261 (1979). at 6. Alford EV Id. Id. R pleas are problematic to some, as they allow for the punishing pleas are problematic to some, as Y ’ Fifty years ago, in Fifty years ago, The practice of negotiating a reduced punishment in return for a The practice of negotiating a reduced † Powell Endowed Professor of Business Law, Angelo State University. 4. 6. 5. John H. Langbein, 1. 400 U.S. 25 (1970). 2. U.S. 25, 31 (1970). North Carolina v. Alford, 400 3. Albert W. Alschuler, OC IT DESERVES ANOTHER FIFTY YEARS ANOTHER FIFTY IT DESERVES THE M K & S (1979). Supreme Court ruled that it does not violate due process for a judge to Supreme Court ruled that it does who maintains his innocence. accept a guilty plea from a defendant largely a product of misunderstandings regarding innocence determi- largely a product of misunderstandings and the impracticality of abolish- nations, what constitutes coercion, ing the practice. Furthermore, this essay discusses the overlooked benefits I. INTRODUCTION guilty plea dates back to the “confessions” of the thirteenth century. guilty plea dates back to the “confessions” rules of evidence and a more adversarial process resulted in increased caseloads and an accompanying increased incentive to plea bargain. system, and society at large. II. HISTORY OF THE of a defendant who has neither been adjudicated guilty nor admitted of a defendant who has neither been guilt. against This essay critically evaluates the arguments Plea bargaining has been on a steady upward trajectory throughout Plea bargaining has been on a steady to increases in criminalization. United States history, closely linked were predominantly “judge-dom- In the eighteenth century, jury trials so rapidly that plea bargain- inated, lawyer-free procedures conducted ing was unnecessary.” Courts would often invalidate plea agreements in post-Civil War America, allowing defendants to withdraw their pleas based on prece- Alford pleas. It demonstrates that these anti- \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 1 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 6 Side A 12/15/2020 11:16:45 12/15/2020 A 6 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 6 Side B 12/15/2020 11:16:45 M K C Y 18 14 . 611, 16 [Vol. 54 EHAV 8 . B UM In the early This case se- 7 12 In the 1970 case 10 (Sept. 2017), https:// , 40 L. & H By 1925, almost 90% of By 1925, almost TLANTIC 9 To Plead or Not to Plead: A Com- that it does not violate due Criminal Law: The Innocent Defen- , A Alford According to this new standard, as According to this 13 1, 8 (2013). the United States Supreme Court reluc- the United States 11 , However, the Court also stipulated that accept- However, the Court also stipulated 19 RIMINOLOGY CREIGHTON LAW REVIEW 17 Innocence Is Irrelevant does not create a legal right for defendants to have does not create a legal right for defendants . L. & C , 400 U.S. at 38 n.11 (“Our holding does not mean that a trial judge must , 397 U.S. at 750. Alford RIM at 9-10. at 10. But this awareness did little to stall the growth of plea bar- But this awareness did little to stall Alford Id. Id. Id. Id. Brady Id. 15 The Supreme Court decided in The percentage of convictions from guilty pleas in federal courts convictions from guilty pleas in The percentage of 8. 9. 7. Lucian E. Dervan & Vanessa A. Edkins, , 103 J. C 16. Emily Yoffe, 17. North Carolina v. Alford, 400 U.S. 25, 38 (1970). 18. 19. 14. 10. 15. Allison D. Redlich & Reveka V. Shteynberg, 11. 397 U.S. 742 (1970). 12. the Brady v. United States, 397 U.S. 742, 743 (1970) (upholding a plea where 13. Brady v. United States Brady v. United 611 (2016). dents prohibiting incentives in return for guilty pleas. dents prohibiting twentieth century, increased criminalization and the accompanying increased criminalization and twentieth century, system. helped form our modern plea increases in caseloads agreements are more lenient standard that plea cured the modern, be “voluntary.” only required to of www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/. criminal convictions were the result of guilty pleas. criminal convictions process for a judge to accept a guilty plea from a defendant who main- process for a judge to accept a guilty tains his innocence. long as a plea is not the result of “actual or threatened physical harm long as a plea is not the result of the will of the defendant,” or [made] by mental coercion overbearing tantly upheld the constitutionality of plea bargaining. tantly upheld the ance of such a plea is left to the discretion of the trial court judge. ance of such a plea is left to the their pleas accepted. accept every constitutionally valid guilty plea merely because a defendant wishes so to accept every constitutionally valid guilty plea merely because a defendant wishes so plead.”). gaining, which continued on its upward trajectory to the present, gaining, which continued on its are the result of a plea. where 97% of federal felony convictions from 1908 to 1916 rose from 50% to 72%. from 1908 to 1916 dant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Prob- dant’s Dilemma: An Innovative Empirical lem defendant claimed his acceptance of a fifty-year plea offer was the result of induced fear of the threat of the death penalty if he went to trial). parison of Juvenile and Adult True and False Plea Decisions it is considered voluntary. The advent of DNA testing in the 1990s defendants who had accepted guilty increased awareness of innocent pleas. Therefore, 2 \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 2 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 6 Side B 12/15/2020 11:16:45 12/15/2020 B 6 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 7 Side A 12/15/2020 11:16:45 . 3 EV , 27 L. R pleas. prose- Regard- 29 PLEAS 25 ORNELL Alford plea, the judge , 88 C ALFORD Alford 27, 38 (2015). Y ’ Federal Rule of Criminal Federal Rule of pleas should.” Pleas in the Age of Innocence OL 20 In an . P may not allow . 1412, 1412 (2003). UB plea). 22 31 Alford EV Alford L. R pleas “undermine the procedural values of accu- . J.L. & P LA One significant difference between tradi- One significant note 20, at 471. and NOLO Contendere Pleas ORNELL 21 Alford 23 Straining at Gnats and Swallowing Camels: The Selective supra Alford pleas is that the defendant’s admission of guilt pleas is that the Pleading Guilty While Claiming Innocence: Reconsidering , 88 C Harmonizing Substantive-Criminal-Law Values and Crimi- Harmonizing Substantive-Criminal-Law Values , 26 U. F pleas are at the discretion of prosecutors and pleas are at the discretion of pleas are guilty pleas, pleas are guilty Plea note 24 at 1370, 1374 (referring to those who criticize Alford pleas Alford THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD , 400 U.S. at 38 n. 11 (explaining that the trial judge has the ulti- And some legal scholars are vehemently opposed to it, And some legal scholars are vehemently Alford Alford 24 supra Alford , 400 U.S. at 32. , 397 U.S. at 748. pleas are recognized as necessary by criminal justice ex- pleas are recognized as necessary 27 at 38, 42-43. they can be arbitrarily applied. Particular judges, . & L. 467, 468 (2009) (“To be clear, Alford pleas are guilty pleas.”). . & L. 467, 468 (2009) (“To be clear, Alford and even defense attorneys CI and practiced in forty-seven states and the District of and practiced in forty-seven 28 See Alford Id. Brady Alford 30 RBITRARINESS . S Alford 26 Because Because The notion of punishing someone in the absence of an adjudica- someone in the absence The notion of punishing 31. 26. Bibas, 30. James W. Diehm, 25. Albert W. Alschuler, 28. North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970). 29. 27. Redlich & Ozdogru, 22. 23. 686 (Wash. 1976) (en banc) (“[T]he factual basis State v. Newton 552 P.2d 682, 24. Stephanos Bibas, 21. 20.Ozdogru, Alford Allison D. Redlich & Asil Ali EHAV M K 1361, 1363 (2003) (stating that B cutors, less, A. A must establish the factual basis for accepting the plea based on an factual basis for accepting the must establish the independent assessment. Procedure 11 requires that they be made voluntarily, knowingly, and that they be made voluntarily, Procedure 11 requires circumstances sufficient awareness of the relevant intelligently, “with and likely consequences.” racy and public confidence in accuracy and fairness”); United States v. Bednarski, 445 racy and public confidence in accuracy and fairness”); United States v. Bednarski, fact F.2d 364, 366 (1st Cir. 1971) (“[T]he public might well not understand or accept the that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail.”). tional pleas and in a traditional plea generally serves as the required “factual basis” generally serves as the required in a traditional plea of the plea. for the judge’s acceptance judges, as “[t]he few”). mate discretion on whether to accept an as demonstrated by the Albert W. Alschuler quote, “[i]f anything short as demonstrated by the Albert W. of torture can shock your conscience, for [a guilty] plea may come from any source the trial court finds reliable, and not just for [a guilty] plea may come from any source the admissions of [the] defendant.”). perts Columbia. tion of guilt and without an admission of guilt may strike laypeople as tion of guilt and without an admission problematic. the Mysterious Morality of Professor Bibas nal Procedure: The Case of III. REFUTING THE ARGUMENTS AGAINST 2020] \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 3 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 7 Side A 12/15/2020 11:16:45 12/15/2020 A 7 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 7 Side B 12/15/2020 11:16:45 M K . C Y M 36 . L. plea plea EMP Plea to Alford , 10 A But it [Vol. 54 34 , 82 T Alford Alford Alford Furthermore, 32 pleas does remove Alford . 238, 240 (2019) (finding that a CON E , https://www.merriam-webster.com/dic Temperature and Decisions: Evidence from COM plea on the arbitrariness grounds . PPLIED Response pleas are somewhat arbitrary. pleas are somewhat Emotional Judges and Unlucky Juveniles pleas, traditional plea bargaining would pleas, traditional plea bargaining EBSTER Alford . J.: A plea offers—or no plea offer at all—based -W CON The Pragmatic Plea: Expanding Use of the Alford . E Alford the recent performance of a local sports team, the recent performance of a local M Alford ERRIAM CREIGHTON LAW REVIEW 35 . 171, 173 (2018), https://www.aeaweb.org/articles?id= 10.1257/ Lunchtime Leniency: Judges’ Rulings Are Harsher When They affect trial outcomes. , M . (Sept. 1, 2011), https://www.scientificamerican.com/article/lunch 37 , 11 A M CON E . A CI , S Arbitrary plea is worse off. at 38. PPLIED This arbitrariness is not only unfair, but also damages the is not only unfair, but also damages This arbitrariness Id. plea. While abolishing the practice of 33 . J.: A The focus on making the criminal justice system less arbitrary is The focus on making the criminal In a limited sense, In a limited sense, Alford . 1389, 1399 (2010). 35. Kurt Kleiner, 37. Anthony Heyes & Soodeh Saberian, 36. Ozkan Eren & Naci Mocan, 33. Jenny Elayne Ronis, 34. And even this concession may be too generous. Arbitrary is defined as “existing 32. CON EV E R receives no benefit, while the defendant who would have been offered receives no benefit, while the defendant an while another similarly situated defendant may not. while another similarly is unclear how pointing this out supports the abolishment of the prac- this out supports the abolishment is unclear how pointing tice. In the absence of Therefore, a defendant in one case may be afforded an in one case may be afforded Therefore, a defendant Indiana, Michigan, and New Jersey have complete bans on and New Jersey have complete Indiana, Michigan, any arbitrariness involved, it is difficult to see who benefits from this any arbitrariness involved, it is difficult course of action. The defendant who was not offered an tionary/arbitrary (last visited Mar. 9, 2020). that some other similarly situated defendant might not be offered an that some other similarly situated still be arbitrary. Meaning, similarly situated defendants may receive vastly disparate non- on numerous arbitrary factors. It is a peculiar proposal to deny one defendant the benefit of an app.20160390 (finding that an unexpected loss from a prominent team in the state cor- app.20160390 (finding that an unexpected loss from a prominent team in the state related with an increase in the duration of sentences handed down the following week). time-leniency/ (finding that judges are significantly more likely to grant a parole re- time-leniency/ (finding that judges are significantly more likely to grant a parole quest when they are not hungry). somewhat misguided. definition of the word “ar- Using this expansive justice system would qualify. bitrary,” many aspects of the criminal the jury, officer errors in gathering Variables such as the makeup of crime occurred, and quality of legal evidence, jurisdiction where the representation all affect legal outcomes. Even factors as trivial as how hungry the judge is, reputation of the legal system. reputation of the Promote Traditionally Conflicting Interests of the Criminal Justice System or coming about seemingly at random or by chance or as a capricious and unreasonable act of will.” 207,000 Court Cases Are Hungrier and the weather Alford 4 arbitrari- an additional element of geographic pleas, thus creating ness. \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 4 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 7 Side B 12/15/2020 11:16:45 12/15/2020 B 7 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 8 Side A 12/15/2020 11:16:45 R 5 38 at 14. plea can Id. , the court re- plea. These It is true that pleas—would Alford 40 Smith v. Common- 43 Alford Alford , 356 U.S. 26 (1958)). 41 pleas may add points see also the United States Su- rev’d 42 Alford at 12. The court maintained that an . Smith v. Commonwealth . 913, 921-22 (2003); Response , 499 S.E.2d EV plea required the trial court to disregard the . L. R Smith Alford O Brady v. United States, A Plea Best Not Taken: Why Criminal Defendants Should In sex offender cases, In sex offender cases, ONSEQUENCES note 38, at 914. . P. 11(b)(1)(G)-(M). , 68 M 39 C THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD RIM Plea pleas allow defendants to assert their innocence while to assert their innocence pleas allow defendants supra . R. C at 934-35. Alford ED Id. Alford OLLATERAL plea is the same as any other guilty plea for sentencing purposes. Furthermore, in Ensuring that defendants are aware of the consequences of their Ensuring that defendants are aware the defendant is pleading; the nature of each charge to which including imprisonment, any maximum possible penalty, any mandatory mini- fine, and term of supervised release; the court’s authority mum penalty; any applicable forfeiture; to impose a special to order restitution; the court’s obligation to . . . appl[y] [the] Sen- assessment; . . . the court’s obligation discretion to depart from tencing Guideline[s], and the court’s those guidelines under some circumstances. There are collateral consequences that defendants may not take consequences that defendants There are collateral 39. Ward, 42. 397 U.S. 742 (1970). 43. Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United 41. F 40. 38. Bryan H. Ward, F increase in outdoor temperature reduced favorable outcomes by 6.55%, despite the ° M K B. C be an aggravating factor that increases the harshness of sentencing. factor that increases the harshness be an aggravating jected the notion that an misunderstandings are not surprising given the amorphous nature by are not surprising given the amorphous misunderstandings which taking away options defendants have—suchtaking away options defendants as serve to limit the potential for defendants to be misinformed.serve to limit the potential for defendants But the to be simply ensuring that de- more pragmatic course of action seems fendants are informed regarding all potential consequences. wealth, 499 S.E.2d 11 (Va. Ct. App. 1998). In to the assessment of defendants’ level of risk posed to society due to to the assessment of defendants’ for their actions. their refusal to accept responsibility preme Court held that in order for a guilty plea to be accepted, the preme Court held that in order for the consequences. defendant must be “fully aware” of defendant’s lack of remorse. States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), simultaneously entering a guilty plea.simultaneously entering may For example, a defendant an the lack of remorse inherent in not be aware that legal decisions is a valid concern. Federal Rule of Criminal Procedure 11 requires that the defendant understand: into consideration when they decide to accept an into consideration judgments being made indoors). Avoid the Alford 10 2020] on parole for also find it more difficult to be released Defendants may this same reason. \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 5 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 8 Side A 12/15/2020 11:16:45 12/15/2020 A 8 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 8 Side B 12/15/2020 11:16:45 M K C Y Only ONDUCT . In close [Vol. 54 C 45 L ’ ROF P 1983) (“A lawyer mens rea N ’ SS A ULES OF AR R . B M 52 ODEL But it is unclear that a co- 48 r. 1.1 (A pleas, defense attorneys would be in- pleas, defense attorneys ONDUCT Response C and should therefore try to “penetrat[e] L ’ 49 Alford ROF This practice requires defense attorneys to This practice requires defense attorneys P 50 CREIGHTON LAW REVIEW ULES OF Plea: A Necessary but Unpredictable Tool for the Criminal Defen- . 1063, 1063 (1987). Another way a defendant could be uncertain note 24, at 1389. 1983) (“A lawyer shall act with reasonable diligence and prompt- N R ’ EHABILITATION EV SS R supra Alford A ODEL L. R pleas hinder defendants’ contrition, education, and re- contrition, education, pleas hinder defendants’ M AR especially for sex offenders. at 1405. at 1405. at 1375. at 1395 (using the first step of the twelve-step Alcoholics Anonymous pro- at 1393-1400. Placing this burden on defense attorneys is even more Placing this burden on defense The OWA . B In the absence of In the absence of 47 Id. Id. See Id. Id. Id. Id. 51 M INDERS can the rehabilitation process begin. can the rehabilitation 44 Defense attorneys often must convince delusional clients of the Defense attorneys often must convince Alford treatment and is detrimental to a criminal’s It is true that denial 46 , 72 I 52. 45. 50. 46. 47. 48. 49. 51. This could be due to the defendant not having a memory of the incident. Curtis 44. Bibas, after defense attorneys “break down their clients’ illusions and deni- “break down their clients’ after defense attorneys als” scenarios, it could be unclear even to the defendant if his mental state rises to the re- scenarios, it could be unclear even to the defendant if his mental state rises to the quired level. C. H shall provide competent representation to a client.”); M erced, one-time confession made in order to avoid the devastating con- erced, one-time confession made in really serves as an admission for sequences of a trial conviction reform. purposes of contrition and long-term unlikely odds of success at trial. But that is very different from a duty counsel, advising clients that it is to “provide moral as well as legal right to admit their crime” centivized to “persuade clients to face up to [their crimes].” clients to face up to [their centivized to “persuade clients’ denials . . . .” play the role of judge and not only predict the likelihood of success at play the role of judge and not only guilt of their clients—atrial, but the ultimate innocence or determina- to the defendants them- tion that is sometimes even unknowable selves. as to his ultimate innocence or guilt is if the crime required a specific form. gram as just one example). problematic when done during plea bargaining.problematic when done during plea At such an early into the defendant’s culpa- stage in the trial process, the investigation bility is often incomplete. Informing a defendant who insists on his to accept a plea offer may often innocence that it is in his best interest be good advice. But trying to convince a defendant who insists on his may violate the duty of a defense innocence that he is in fact guilty his client. attorney to zealously advocate for reform, J. Shipley, dant r. 1.3 (A 6 \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 6 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 8 Side B 12/15/2020 11:16:45 12/15/2020 B 8 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 9 Side A 12/15/2020 11:16:45 , 7 advo- See, e.g. , pmbl. (ex- Alford The use of the ONDUCT 53 C L ’ ROF P ULES OF R NCRIMINATION -I This claim usually comes in one of ODEL M 55 ELF S pleas violate a defendant’s constitutional 54 see also GAINST Alford plea. A note 20, at 468 (“We note at the outset that we cannot provide note 38, at 913. It should be noted that other anti- . amend. V. IGHT THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD supra pleas hinder the process of defense attorneys persuad- pleas hinder the process of defense Alford R supra ONST Alford advocacy literature. example, “[c]riminal defense attorneys For IOLATES The perplexing notion that defense attorneys at the plea-bargain- that defense attorneys at the The perplexing notion Even if one assumes that rare cases exist when a defense attorney Even if one assumes that rare cases Some claim that 53. Ward, 54. North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970). 55. U.S. C M K and those who are only highly likely to be guilty?and those who are only highly likely Finally, the objec- Redlich & Ozdogru, ing stage would be able to ascertain with certainty whether a defen- be able to ascertain with certainty ing stage would in some anti- his innocence is lying is present dant who maintains cates do recognize the impossibility of knowing who is guilty and innocent. plaining that “a lawyer zealously asserts the client’s position under the rules of the plaining that “a lawyer zealously asserts the client’s position under the rules of adversary system,” “can be a zealous advocate on behalf of a client,” and has an “obliga- tion zealously to protect and pursue a client’s legitimate interests”). subjective term “overwhelming” is telling.subjective term of proof in The burden so high that—incriminal trials is a sense—“overwhelming” evidence for a conviction.is always required demonstrates the im- This further their clients’ guilt or in- practicality of defense attorneys determining nocence. evidence is required Where exactly is the line for how much of innocence?to “overwhelm” their clients’ assertions Furthermore, “overwhelmingly” supported by the beliefs that initially appear to be once additional evidence is consid- evidence may become far less clear ered. initially appears “over- Meaning, the guilt of defendants that so after a trial. whelming” may become much less guilt, how are defense attor- can be absolutely certain of his client’s between defendants that are abso- neys supposed to draw the line lutely guilty—and to accept a plea— therefore in need of persuasion tion that two forms. this constitutional infringe- The defendant may claim that ment stems from post-conviction treatment that requires the disclo- right against self-incrimination. data or insight into the proportion of persons who enter Alford pleas who are factually innocent.”). ing clearly guilty defendants to confess to their crimes is largely a ing clearly guilty defendants to moot point. This is because in cases where the defendant is so obvi- to offer—andously guilty, a prosecutor is unlikely a judge is unlikely to accept—an are occasionally confronted with a conundrum—aare occasionally who in- defendant is overwhelm- yet against whom the evidence sists that he is innocent, . .” refuse to admit their guilt . . ing. Such defendants ness in representing a client.”); D. V 2020] Alford \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 7 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 9 Side A 12/15/2020 11:16:45 12/15/2020 A 9 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 9 Side B 12/15/2020 11:16:45 M K C Y Guilty [Vol. 54 58 More spe- 63 plea advocates Alford plea] were innocent, it would be too plea—is to required to admit 57 Even anti- pleas bring to the criminal justice Alford 61 CCURACY Therefore, the practice does not in- Alford But there are protections against But there are A plea, two “units” of accuracy are lost. note 20, at 487 (providing an example of this 60 59 Response Response Alford plea may require court-ordered counsel- plea may require supra Or, the claim may stem from when a Or, the claim Alford 64 56 But such an absolute position is clearly un- But such an absolute position is 62 pleas are a subset—do the right against waive Alford 66 CREIGHTON LAW REVIEW note 24, at 1382. note 38, at 938. note 38, at 937. FFICIENCY OVER Alford E supra supra supra Therefore, the only way the objection would be meaning- Therefore, the only way the objection Redlich & Ozdogru, 65 at 938. at 927. Id. Id. Id. See Id. Id. ROMOTES This objection lacks substance because there is no objective, quan- This objection lacks substance because While the efficiency that It is true that an It is true that an 66. 57. 61. 64. 58. 59. Boykin v. Alabama, 395 U.S. 238, 243 (1969). 60. Ward, 62. 63. Bibas, 65.every For example, it would be nonsensical for the objector to claim that for 56. Ward, sure of illegal conduct. pleas—of which cifically, the accuracy in not punishing innocent defendants is more cifically, the accuracy in not punishing important than efficiency. admit that “the self-incrimination argument has few legs to stand on admit that “the self-incrimination requirement that defendants ac- when contesting a post-conviction knowledge their guilt.” actions associated with his guilty plea. actions associated many”). system is beneficial, accuracy should be more important. system is beneficial, accuracy should cur Fifth Amendment implications. the use of statements obtained through court-required counseling be- the use of statements obtained through ing used against the defendant. more absolutist position with “there are many who would argue that, even if only a more absolutist position with “there are many who would argue that, even if only small percentage of [those who entered an ing which in turn might require an admission of guilt. might require an admission ing which in turn defendant—in order to accept an compulsory self-incrimination. ful is if it were altered to be more absolute such as, “No amount of ful is if it were altered to be more any loss in accuracy of identifying efficiency gain could possibly justify innocent defendants.” tifiable matrix by which to measure the tradeoff between accuracy and tifiable matrix by which to measure efficiency. “unit” of efficiency gained by the E. P 8 \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 8 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 9 Side B 12/15/2020 11:16:45 12/15/2020 B 9 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 10 Side A 12/15/2020 11:16:45 9 An- pleas 69 where the pleas would Alford 70 This extreme , 71 67 Alford plea. pleas are highly coer- Alford Alford pleas are accompanied by a net pleas are accompanied Falkner v. Foshaug Alford plea serves to increase the autonomy Response Alford plea is the flexibility it offers the defendant. Alford pleas frees up law enforcement and court resources pleas frees up law note 24, at 1378. note 16. THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD plea advocates correctly point out that efficiency is correctly point out that efficiency plea advocates supra supra Alford Alford is not evidence of coercion, only evidence of how advantageous is not evidence of coercion, only evidence plea is simply an additional option. Presenting an additional OERCION 68 Anti- The existence of the As with traditional plea bargains, As with traditional plea bargains, 70. 29 P.3d 771 (Wash. Ct. App. 2001). 71. Falkner v. Foshaug, 29 P.3d 771, 777 (Wash. Ct. App. 2001). 69. Bibas, 67. Berthoff v. United States, 140 F. Supp. 2d 50, 68 (D. Mass. 2001). 68. Yoffe, M K tenable. be- system makes numerous tradeoffs The criminal justice and accuracy. tween efficiency other benefit of an provide numerous ancillary benefits to the defendant, such as the abil- ity to save face. more easily protect valuable They allow defendants to relationships and more successfully seek future employment. defendant was able to win on a malpractice theory because he main- tained his innocence through the use of an be outweighed by the costs of decreased accuracy.be outweighed by also not clear It is efficiency from that the gains in disparity serves to coerce defendants into accepting a plea instead of disparity serves to coerce defendants going to trial to prove their innocence. cive. what is offered in a plea The average sentence disparity between conviction is 500%. and what would result from a trial loss in accuracy. are not mutually exclusive. The two effi- Increased ciency from of defendants; it in no way decreases the defendant’s autonomy of defendants; it in no way decreases through coercion. The option of going to trial is always present. An This flexibility is demonstrated in that can then be invested in more accurate determinations of inno- invested in more accurate determinations that can then be cence—therefore increasing accuracy. F. C not the final word on what criminal justice policies should be adopted. on what criminal justice policies not the final word the benefits in efficiency from But it is unclear that pleas are to defendants. This comes as no surprise, as option to a decisionmaker while keeping the original option available option to a decisionmaker while keeping how attractive the new option cannot be said to be coercive no matter is perceived. The fact that 97% of convictions are the result of guilty pleas Alford 2020] \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 9 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 10 Side A 12/15/2020 11:16:45 12/15/2020 A 10 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 10 Side B 12/15/2020 11:16:45 M K , N ’ C Y Al- SS A Alford AR [Vol. 54 case it- . B M advocate to Alford Alford , at xvi (A But without the 73 UILTY plea would now be forced G The notion that innocent peo- Alford LEAS OF 74 P USTICE . J the level of coercion defendants face. De- RIM C note 25, at 1414. CREIGHTON LAW REVIEW increase supra TANDARDS FOR The system is designed with trials as the mechanism by The system is designed with trials ., https://www.cato.org/policing-in-america/chapter-4/blackstones-ratio (last The existence of a disparity between plea offer and trial sen- a disparity between plea offer and The existence of 75 Blackstone’s Ratio: Is It More Important to Protect Innocence or Punish Guilt? 72 NST NNOCENCE Pleas are required to be made knowingly, intelligently, and volun- to be made knowingly, intelligently, Pleas are required Furthermore, there are many features of the criminal justice sys- Furthermore, there are many features Coercion is a highly peculiar issue for an anti- Coercion is a highly peculiar issue “[The United States plea-bargain system] is marvelously designed “[The United States plea-bargain I plea, this gripping fear of the death penalty would have likely plea, this gripping fear of the death 75. 72. ABA S 73. (quot- North Carolina v. Alford, 400 U.S. 25, 40 (1970) (Brennan, J., dissenting) 74. Alschuler, ATO C tarily. Brennan, Douglas, and Mar- self, where the three dissenting justices, plea was not voluntary because he shall, stated that Henry Alford’s penalty.” was “so gripped by fear of the death present in support of abolition. This is because removing the to begrudgingly admit guilt in order to avoid trial, thus functionally to begrudgingly admit guilt in order creating a forced confession. This is illustrated in the ple should not be punished is axiomatic in the U.S. criminal justice ple should not be punished is axiomatic system. fendants who would have accepted an fendants who would have accepted which guilt is determined. These trials provide defendants with nu- that are lost when a plea offer is merous constitutional protections accepted. tem that incentivize innocent defendants to accept pleas, even if they visited Mar. 9, 2019) (“The American system, grounded in the British Common Law, has long erred on the side of protecting innocence. . . . As the preeminent English jurist William Blackstone wrote, ‘[B]etter that ten guilty persons escape, than that one inno- cent suffer.’”). tence upon conviction does nothing to render the defendant’s does nothing to render tence upon conviction or involuntary. plea to be unknowing, unintelligent, acceptance of the a $30,000 offer for to illustrate: If someone accepted An analogy serves way serve to ne- this extreme disparity would in no his $20,000 car, and volunta- was accepted knowingly, intelligently, gate how the offer rily.of the claimed to be acting on behalf Furthermore, anyone who automobile by proposing a ban on such generous seller’s best interest be viewed with great skepticism. offers would rightly ford to secure conviction of the innocent.” caused him to confess to a crime he maintained he did not commit. caused him to confess to a crime G. I 1999), https://www.americanbar.org/content/dam/aba/publications/criminal_justice_ standards/pleas_guilty.pdf (discussing the obvjective of the ABA standards is to “maxi- mize the fairness of the process and the likelihood that the defendant has entered such a plea knowingly and voluntarily, fully understanding the consequences”). ing Brady v. United States, 397 U.S. 742, 750 (1970)). plea would serve to 10 \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 10 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 10 Side B 12/15/2020 11:16:45 12/15/2020 B 10 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 11 Side A 12/15/2020 11:16:45 11 See plea pleas Alford At the 76 Alford Alford pleas maintain their 79 One survey of defense at- Alford pleas have been the mecha- 78 Alford pleas). With over two million people incarcer- pleas, innocent defendants have cer- pleas, innocent defendants have Response justification for its abolishment. Further- pleas promote the punishing of innocent pleas promote the plea is not going to be freed if Alford pleas are guilty. Alford Therefore, pleas] infrequently.” per se 77 Alford Alford note 30, at 34 (estimating that 3% of federal defendants and Alford note 25, at 1417. pleas. While it is ultimately unknowable exactly who is inno- note 24, at 1378. plea advocates admit that a “substantial majority” of plea advocates admit that a “substantial Alford supra THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD supra Alford supra Alford Diehm, See pleas are from guilty defendants. note 51. Given the scale of It is important to note that an innocent defendant who would It is important to note that an The notion that 78. Alschuler, 79. Bibas, 77. 76. And sometimes even the defendant cannot know if he is guilty or innocent. M K might be better off going to trial.might be better unreasonably Examples include while awaiting defendants to remain in prison high bail that forces who would have being treated unfairly by a judge trial, the risk of public defenders plead out, overcharging, and preferred the case advice to convince structure incentivizes biased whose compensation pleas. defendants to accept are allowed to do so while maintaining their innocence, their inno- are allowed to do so while maintaining by the defendant. cence can only be known with certainty are abolished. Rather, he will be faced with the dilemma of either en- or tering a false confession in order to receive the benefits of a plea facing the harsh consequences of a trial. Forcing innocent defendants into this dilemma in an effort to protect them from accepting an plea stage of a trial, prosecutors and judges make probabilistic deter- plea stage of a trial, prosecutors and based on the limited information minations as to the defendant’s guilt available at the time. innocence does not mean that, as a group, the majority are innocent. innocence does not mean that, as Even anti- torneys concluded that “[a]lmost all interviewees agreed that innocent torneys concluded that “[a]lmost all defendants use [ nism by which innocent people have been punished.nism by which innocent people But the justice policy will imprison some knowledge that a large-scale criminal innocent people is not ated in the U.S.—the vast majority in state prisons—this essay estimates that 100,000 inmates accepted tainly accepted them. more, the fact that defendants accepting more, the fact that defendants accepting defendants stems from misunderstandings regarding the nature of in- defendants stems from misunderstandings nocence in criminal trials. While defendants who enter an 6.5% of state defendants entered cent and who is not, it is incredibly unlikely that all 100,000 currently incarcerated defendants who accepted have been offered an supra Alford 2020] \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 11 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 11 Side A 12/15/2020 11:16:45 12/15/2020 A 11 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 11 Side B 12/15/2020 11:16:45 M K C Y 85 [Vol. 54 It would 81 “Pressing in- Fairness and the 80 . 97, 99 (2010). 82 TUD L. S MPIRICAL , 7 J. E , 434 U.S. 357 (1978), as discussed in Tor, Gazal- note 15, at 613. note 15, at 613. For a real-life example of how a This is due to perceptions of fairness, 84 83 supra supra and increased confidence that the truth will and increased confidence that the 86 note 25, at 1422. CREIGHTON LAW REVIEW note 84, at 98-99. note 24, at 1386. supra supra supra Bordenkircher v. Hayes Avishalom Tor, Oren Gazal-Ayal & Stephen M. Garcia, United States v. Dunnigan, 507 U.S. 87, 94 (1993) (“A witness testifying See See The high burden of proof in criminal court, the protections af- The high burden of proof in criminal of innocent defendants who are Studies into the thought process Simply put, it makes no sense to deny innocent defendants who no sense to deny innocent defendants Simply put, it makes would be confronted by an ad- Additionally, innocent defendants 85. Redlich & Shteynberg, 82. Bibas, 86. Redlich & Shteynberg, 83. 84. 80. simply drop the charges against all innocent Naturally, it would be ideal to 81. Alschuler, plea is highly counterintuitive and counterproductive. plea is highly counterintuitive also cause “serious negative externalities” on society at large by dam- negative externalities” on society also cause “serious perception of a just legal system. aging the public’s nocent defendants to confess would generate only a sense of victimiza- to confess would generate only a nocent defendants and hypocrisy of our legal system.” tion and of the cruelty Ayal & Garcia, defendant can be driven to seemingly irrational behavior based on a sense of unfairness, see the case of under oath or affirmation [commits perjury under federal law] if she gives false testi- mony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. This federal definition of perjury by a witness has remained unchanged in its material respects for over a cen- tury. It parallels typical state-law definitions of perjury . . . .”). forded defendants, and the requirement that jury verdicts be unani- forded defendants, and the requirement defendants accepting pleas. mous, all help protect against innocent a defendant accepting a plea is—inThis is because the likelihood of part—a of his predicted likelihood of conviction at trial. function support the notion that false pleas confronted with a plea offer also are rare. Innocent defendants are more likely than their guilty coun- terparts to insist on a trial. refuse to lie about their guilt the benefits afforded to their guilty coun- their guilt the benefits afforded refuse to lie about to lie to accept innocent counterparts who are willing terparts or their a traditional plea. who are a policy would serve to punish those Such punishment—theleast deserving of code so innocent with a moral to lie even to avoid the conse- stringent that they are not willing death. quences of trial which may include coercion to enter a traditional guilty ditional dilemma when facing the plea or face trial. Namely, a traditional guilty plea, which requires an is technically the crime of perjury or innocent defendant to admit guilt making a false statement. Willingness to Accept Plea Bargain Offers defendants, but this statement is operating under the real-world conditions that we defendants, but this statement is operating with absolute certainty at the plea-bargain- cannot identify who is innocent and guilty ing stage of a trial. an unwillingness to lie, 12 \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 12 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 11 Side B 12/15/2020 11:16:45 12/15/2020 B 11 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 12 Side A 12/15/2020 11:16:45 . 13 OC & S pleas pleas. plea litera- Alford Alford Social Psychology ERSONALITY Pleas and Punishment Alford But Dostoyevsky’s pleas, because they , 36 J. P 89 Alford TANDARDS S Alford ROOF pleas apply a standard of proof 91 -P OF - Alford Reading some anti- plea analogy provides another example: plea analogy provides 90 87 URDEN B Alford note 25, at 1422. “I Ain’t Shot No Man”: Reconciling L.J. 368, 376 (2008). pleas, enacting legislation aimed at reforming the pleas, enacting legislation aimed note 24, at 1384. RIMINAL THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD supra C Defense attorneys simply cannot make such an absolute Defense attorneys supra 88 Alford W. Larry Gregory, John C. Mowen & Darwyn E. Linder, ARTMOUTH . 1521, 1521 (1978). See Id. IOLATES , 6 D Finally, pointing out features of the criminal justice system that Finally, pointing out features of the The following anti- Retributive justice requires a high degree of certainty to punish 89. Bibas, 91. 90. Lauren Hartz, 88. Alschuler, 87. SYCHOL M K P somehow come out at trial. somehow come out and therefore receive punishment since we do not know which defend- and therefore receive punishment ants are innocent. accept a plea—suchincentivize innocent defendants to as unreasona- bly high bail—does of little to justify the abolishment to traditional pleas.The same argument would apply Rather than abolishing ture causes one to question whether the writers understand that inno- question whether the writers understand ture causes one to unknowable.cence is ultimately provides an The following quote defendants to attorneys have reported advising example: “Defense no doubt of their the attorneys themselves had plead guilty although innocence.” position assumes that it is known that the child to be murdered is position assumes that it is known innocent. Again, this is not analogous to are precluded if the court knows of the defendant’s innocence—orare precluded if the court knows of even conviction at trial.of the defendant’s unlikelihood of A more analo- would be this: As a soci- gous example than the one from Dostoyevsky that some non-zero amount of ety we are accepting of the fact for crimes they did not com- defendants are convicted and sentenced mit. we do not know, at the This understanding is acceptable because are innocent.time, which convicted defendants In the same way, it is defendants to enter acceptable to allow some innocent significantly less than the “beyond a reasonable doubt” standard af- significantly less than the “beyond a reasonable doubt” standard forded defendants in criminal trials. “To use Dostoyevsky’s example, no hope of good consequences can jus- example, no hope of good consequences “To use Dostoyevsky’s a single innocent child.” tify society’s murdering bail system would be a far more pragmatic and targeted approach to bail system would be a far more addressing this issue. H. V determination—especially the plea-bargaining stage of trial. not at someone accused of a crime. Theory and Plea Bargaining: Applications, Methodology, and Theory 2020] \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 13 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 12 Side A 12/15/2020 11:16:45 12/15/2020 A 12 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 12 Side B 12/15/2020 11:16:45 M K . C Y EV . L. R [Vol. 54 ARQ . 599, 612-13 EV , 70 M . L. R pleas “cause citi- KLA Alford , 58 O 93 “muddy the criminal law’s 92 94 pleas. pleas “breed[s] public doubt and lack pleas “breed[s] public doubt and Response Response note 20, at 471. Alford Alford supra Plea Bargaining: An Unnecessary Evil The Value of Plea Bargaining note 25, at 1418. CREIGHTON LAW REVIEW Furthermore, “unjustified leniency is a spur to fur- Furthermore, “unjustified leniency and “permit equivocation and ambiguity when clar- and “permit equivocation and ambiguity note 30, at 41. pleas are allowed, society is harmed in many ways. pleas are allowed, society is harmed note 24, at 1363. 95 96 plea advocates such as the ones quoted in the above supra OCIETY pleas does not mean that the alternative of abolishing pleas does not mean that the alternative supra S supra 97 Alford demonstrates how the decisionmakers who understand the demonstrates how the decisionmakers Alford at 1364. 98 Alford Id. pleas and traditional pleas alike. pleas and traditional ap- Therefore, if consistently ARM TO Anti- Lay people claiming to lose respect for the criminal justice system Lay people claiming to lose respect When This argument is misleading because the higher “beyond a rea- misleading because the higher This argument is 98. Redlich & Ozdogru, 93. Diehm, 95. Bibas, 94. Alschuler, 96. 97. Ralph Adam Fine, 92. Scott W. Howe, 615, 618, 627 (1987). (2005) (“In the modern era no large city in the United States has gone for a long period without some form of widely practiced plea bargaining.”). zens to suspect coercion and injustice,” moral message,” of respect for the criminal justice system.” of respect for the criminal justice ity is essential.” criminal gloats[] at the law’s ther criminal activity” and “the impotence.” The practice of accepting argument are quick to point out the alleged downsides of the practice. But that is only one side of the equation. These alleged downsides the practice would result in increased respect.the practice would result in increased This is a complicated of the nuanced costs and issue that requires a careful examination benefits on both sides. The fact that only three states have banned the practice process generally support plied, it would lead to the abolishment of all plea bargaining. to the abolishment of all plea plied, it would lead This is simply not practical. No large city in the United States has abolished of time. plea bargaining for a long period due to sonable doubt” standard is taken into consideration during the plea is taken into consideration sonable doubt” standard process. defen- of what plea to offer, the The prosecutor’s decision decision of what what plea to accept, and the judge’s dant’s decision of of conviction at all predicated on the likelihood plea to allow are trial—where ap- a reasonable doubt” standard the stringent “beyond plies. to in this argument would apply equally Furthermore, the logic I. H 14 Alford \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 14 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 12 Side B 12/15/2020 11:16:45 12/15/2020 B 12 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 13 Side A 12/15/2020 11:16:45 15 104 Alford Alford pleas—some- pleas make fu- which would like- pleas affect society Alford 100 Alford pleas would result in the pleas would result Alford 101 and avoid “embarrassment this is a benefit of This would result in further This would result Therefore, they help defend- 102 99 105 Alford 103 plea can result in a harsher Alford pleas offer defendants are also benefits to soci- pleas offer defendants are also benefits plea. Once this aspect is removed and they are left with plea would benefit them immensely. In this way, note 51, at 1073. Alford advocates often neglect. advocates often On the issue of how the note 24, at 1378. Alford note 38, at 914 (“Availing oneself of an Alford plea may result in a THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD Part III.F. ICTIMS supra V Alford supra supra Alford at 1377. See supra Id. ARM TO While there are no quantitative studies analyzing this, basic prin- While there are no quantitative studies As this criticism alleges, a criminal justice system that allows the alleges, a criminal justice system As this criticism “[W]hen a defendant enters an Alford plea, the victim is deprived Finally, the attempt to bifurcate how Finally, the attempt to bifurcate 99. This is because some defendants benefit greatly from the ability to maintain 100. 102. Bibas, 103. 105. Berthoff v. United States, 140 F. Supp. 2d 50, 68 (D. Mass. 2001). 101. Shipley, 104. Ward, M K must be weighed against the positive effects of must be weighed thing anti- ture job prospects easier for defendants wise “tarnish[ ] the integrity of the court.” apart from how they affect defendants is misguided.apart from how they affect defendants This is because day be accused of a crime where the every member of society may one option of an coercing of innocent defendants to admit guilt, coercing of innocent defendants to and shame before family and friends.” judicial delays for future cases and the use of limited resources that future cases and the use of limited judicial delays for and punish crime. used elsewhere to prevent could be more efficiently could negatively who maintains his innocence punishment of someone affect society’s views. abolishing But ants move on to productive, law-abiding lives, which is a clear benefit ants move on to productive, law-abiding to society. since defendants benefit from main- ciples of negotiation dictate that, taining their innocence, an sentence than a traditional plea for similarly situated defendants. sentence than a traditional plea for only a traditional plea offer where they must admit guilt, the alternative of going to only a traditional plea offer where they must admit guilt, the alternative of going trial becomes less unsatisfactory by comparison. ety at large. J. H the benefits that practice affects the public at large, there are numerous benefits that public at large, there are numerous practice affects the downsides.outweigh any potential For example, abolishing stiffer sentence than that imposed on someone who merely pleads guilty.”). of the chance to receive either acknowledgement of wrongdoing by the defendant or a guilty verdict by the jury, and is only left with the their innocence in an pleas. Given the extreme disparity between the punishment received from a Given the extreme disparity between plea bargaining or a trial conviction, 2020] result in more trials. pleas would likely \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 15 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 13 Side A 12/15/2020 11:16:45 12/15/2020 A 13 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 13 Side B 12/15/2020 11:16:45 M K C Y U- Al- , B pleas [Vol. 54 Alford . 907, 930 (2007). UST pleas are guilty pleas, . J OC S pleas and therefore forcing a Alford FOR Id. “[T]here is no closure resulting “[T]here is no closure Most Violent and Property Crimes in the J. PLEAS Alford 106 pleas is how they help victims pursue EATTLE Response Therefore, a defendant who enters an Therefore, a defendant who enters 107 case illustrate the benefits . (Mar. 1, 2017), https://www.pewresearch.org/fact- , 6 S LLUSTRATIVE 109 TR ALFORD pleas do not provide victims closure is false. pleas do not provide I Knowledge Versus Acknowledgement: Rethinking the Alford . C 110 ES Alford CREIGHTON LAW REVIEW R Alford ASE AS note 30, at 40. EW note 24, at 1373. C , P ., https://www.bjs.gov/index.cfm?ty=QA&iid=403 (last visited Mar. 9, supra pleas also save victims from reliving their victimization pleas also save victims supra The notion of barring TAT LFORD 108 A REAU . S 111 Alford Id. FAQ Detail: What is the Probability of Conviction for Felony Defendants? plea is generally precluded from relitigating his innocence in a plea is generally precluded from pleas allow immediate closure compared to the closure eventu- closure compared to the closure pleas allow immediate HE UST The facts of the A further benefit of The claim that J Plea in Sexual Assault Cases And even this statistic is generous because it does not count crimes committed 107. Diehm, 108. 110. 109. Bibas, 111. North Carolina v. Alford, 400 U.S. 25, 29 (1970). 106. Claire L. Molesworth, ford offer. evidence of his guilt, When confronted with overwhelming offer that resulted in a thirty-year Henry Alford chose to accept a plea could have resulted in the death sentence in order to avoid a trial that penalty. court’s entry of a guilty verdict.” court’s entry of a collateral estoppel applies. course of action that could result in Henry Alford’s death is surely course of action that could result from a procedure where the proceedings are terminated by a process where the proceedings are terminated from a procedure culpability while is permitted to continue to deny where the defendant sanction.” receiving a reduced A. T legal recourse in civil court. Because tank/2017/03/01/most-violent-and-property-crimes-in-the-u-s-go-unsolved/. Less than half of violent crimes and less than 20% of property crimes result in an arrest (another instance where the victim receives no closure). 2020). Defendants originally charged with felony assault have a 45% conviction rate. through testifying in court. Additionally, they avoid the possibility of can receive—goingthe ultimate lack of closure a victim through the of a trial only to see the de- uncertainty, inconvenience, and trauma fendant acquitted. For some crimes, this outcome of a victim exper- is more likely than a iencing his victimizer being acquitted conviction. future civil proceeding. ally received after a trial and the exhaustion of all subsequent ap- a trial and the exhaustion of ally received after peals. where no arrest was made. John Gramlich, U.S. Go Unsolved Id. IV. ARGUMENTS FOR Alford 16 Alford \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 16 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 13 Side B 12/15/2020 11:16:45 12/15/2020 B 13 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 14 Side A 12/15/2020 11:16:45 17 This Alford 114 OLICE P HOUGHT 115 T Therefore, the existence of ELATIONSHIP R 113 plea in criminal court. It is difficult to UDGES AS plea option, an attorney is faced with the plea option, an attorney is faced LIENT J –C Alford Alford pleas reduce the risk of ethical dilemmas caused pleas reduce the risk of ethical dilemmas OLE OF note 51, at 1074. NALOGY pleas. R A THE ALFORD PLEA TURNS FIFTY PLEA TURNS THE ALFORD TTORNEY Alford supra A Alford RIAL pleas save judges the arduous task of delving into the T Without an Id. Id. Id. pleas also save judges from having to regulate the defendant’s EDUCES THE ENEFITS IVIL 112 Alford By allowing innocent defendants to maintain their innocence dur- By allowing innocent defendants to Settlement offers in civil proceedings share similarities with plea in civil proceedings share similarities Settlement offers 113. 112. Shipley, 114. 115. M K which is similar to an worse than any of the arguments against the practice discussed in this the arguments against the practice worse than any of essay. B. C increased honesty allows the attorney to better assess the strength of increased honesty allows the attorney minimize potentially harmful sur- the case, better plan trial strategy, prises, and better advise the defendant. see the harm of such a practice. The plaintiff and the defendant both benefit from the arrangement—otherwise would not have agreed they to the settlement. And the courts and society benefit from the more efficient use of resources. Banning civil settlements where the plain- is as impractical and unnecessary tiff maintains he has done no wrong as banning dilemma of allowing an innocent client to lie in court or to deny his dilemma of allowing an innocent client the benefits of a plea offer. by an innocent defendant lying in court to receive a traditional by an innocent defendant lying plea. C. B psyche of each defendant to determine if he is in fact confessing guilt. out-of-court speech. This is because—with traditional pleas—issues in can arise when a defendant states his willingness to confess guilt ing their plea, offers in criminal proceedings.offers in criminal insight Comparing the two provides take responsibility of allowing the accused to into the desirability innocence.while maintaining opposing For example, consider when the defendant a settlement agreement whereby civil litigants reach an admission of wrongdoing—agrees to pay the plaintiff without Alford pleas promotes honesty between an attorney and his client. pleas promotes honesty between D. R 2020] \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 17 9-DEC-20 15:29 C Y 42655-cre_54-1 Sheet No. 14 Side A 12/15/2020 11:16:45 12/15/2020 A 14 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 14 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 Also, the coercion present in pleas are arbitrary is signifi- pleas are arbitrary 117 Alford 116 CREIGHTON LAW REVIEW pleas, it quickly becomes apparent that the first pleas, it quickly becomes apparent advocates present valid criticisms of the practice. advocates present notes 35-37 and accompanying text. Alford , Commonwealth v. Gordy, 73 A.3d 620, 628 (Pa. Super. Ct. 2013) (“Ap- Alford See, e.g. See supra pleas may seem problematic until the alternative of coerced pleas may seem problematic until Anti- 117. 116. court to obtain a plea but then makes contradictory statements re- plea but then makes contradictory court to obtain a garding his innocence. cantly weakened when put in the context of the inherent arbitrariness when put in the context of the inherent cantly weakened of the criminal justice system overall. fifty years of the practice has provided an overall benefit to defend- fifty years of the practice has provided ants, victims, courts, and society. However, many of these criticisms are far less persuasive when under- these criticisms are far less persuasive However, many of are con- context, when the effects of abolishment stood in their proper the benefits. the downsides are balanced against sidered, and when criticism that For example, the pellant pled guilty on one occasion. He then moved to withdraw his pleas. His motion alleged his innocence, a fair and just reason to grant plea withdrawal in this case.”). confessions is considered. When one carefully weighs the benefits and downsides of Alford 18 V. CONCLUSION \\jciprod01\productn\C\CRE\54-1\CRE101.txt unknown Seq: 18 9-DEC-20 15:29 42655-cre_54-1 Sheet No. 14 Side B 12/15/2020 11:16:45 12/15/2020 B 14 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 15 Side A 12/15/2020 11:16:45 4 19 It has been noted 3 † 101 (Simon & Schuster, 1992). ART 2 The Declaration states that “Life, H 1 para. 2 (U.S. 1776). ETTYSBURG AMES J G T A NDEPENDENCE I INCOLN , L . amends. V, XIV. ILLS ONST W The University of Denver Sturm College of Law The University of FROM ENGLAND AND FRANCE FROM ENGLAND . at 38. ECLARATION OF ARRY Id The original tension of the United States of America is that it was of the United States of America The original tension Abraham Lincoln believed the Declaration and Constitution must Abraham Lincoln believed the Declaration At a time when Substantive Due Process may be one United At a time when Substantive Due † The author would like to dedicate this article to the memory of my father, 4. 3. G 2. D 1. U.S. C OUR CONFLICTING LIBERTY HERITAGE OUR CONFLICTING M K that at Gettysburg, Lincoln improved the Constitution for all time, im- that at Gettysburg, Lincoln improved appeal from its letter to the spirit.” plicitly changing its meaning “by I. INTRODUCTION nature of the English Com- formed based on the highly conservative of the United States, but mon Law, made manifest in the Constitution of the French Enlightenment, also in the highly progressive spirit of Independence.made manifest in the Declaration The English Com- and embraces it by relying on mon Law looks back at past authority precedent. back at past authority The French Enlightenment looked and rejected it in full. The Constitution is a legal document. The Dec- laration is an aspirational one. The word liberty appears in both. The of the Constitution state that the Fifth and Fourteenth Amendments person of “life, liberty, or property, government shall not deprive any without the due process of law.” Liberty and the pursuit of Happiness” are among the inalienable Liberty and the pursuit of Happiness” rights possessed by human beings. always be viewed together and that the Declaration was the more im- always be viewed together and that being merely the first rough draft portant document, the Constitution the Declaration. of making manifest the ideals of James P. Hart. Jr., who gave me my love for law and history. But what was the origin of this spirit? States Supreme Court vote away from disappearing, I defend a pro- gressive interpretation of the liberty interest of Substantive Due Pro- cess by arguing that the spirit of the French Enlightenment and the Declaration must instruct the interpretation of the Constitution with its English Common Law basis. provides a legal background Part II for the twin streams of constitutional interpretation that have defined our legal history. England, the Common Part III examines in detail \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 1 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 15 Side A 12/15/2020 11:16:45 12/15/2020 A 15 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 15 Side B 12/15/2020 11:16:45 M K . 7 C Y ONST Gris- [Vol. 54 Casey v. , 31 C (autonomy 11 and 9 If such a right is not 5 The right to contracep- 6 (same sex marriage) were 12 Roe v. Wade Skinner v. Oklahoma The Meming of Substantive Due Process (abortion), (contraception), Obergefell v. Hodges 8 10 CREIGHTON LAW REVIEW Justices who take a more liberal view of the word Justices who take a more liberal 13 , 431 U.S. at 498-500. , Jamal Greene, , Moore v. East Cleveland, 431 U.S. 494, 504-07 (1977). 253, 259 (2016). See, e.g. See Moore See, e.g. The doctrine of Substantive Due Process, at its core, addresses Due Process, at its The doctrine of Substantive Thus, the meaning of the word liberty is critical.Thus, the meaning of the word liberty When looking to 7. U.S. 26, 39 (1994) (Scalia, J., dissenting). United States v. Carlton, 512 8. 381 U.S. 479 (1965). 9. 410 U.S. 113 (1973). 6. 5. 10. 503 U.S. 833 (1992). 11. 316 U.S. 535 (1942). 12. 135 S. Ct. 2584 (2015). 13. OMMENT C Law, and its impact on the Constitution.Law, and its impact the French Part IV examines and aspirations and historical accomplishments, Enlightenment, its Declaration of Independence.its impact on the that Part V concludes instruct the under- of the Enlightenment must the progressive spirit English Common as originally received from the standing of liberty Law. II. BACKGROUND meaning of a liberty interest.the question of the this doctrine, Under the United States Supreme Court if a fundamental right is present, strict scrutiny; the law must be nar- reviews a statute abridging it by interest. rowly tailored to a compelling state over one’s body), and present, the Court uses rational basis review; the law must only be present, the Court uses rational state goal. rationally related to a legitimate tion, abortion, autonomy over one’s body, autonomy over raising one’s tion, abortion, autonomy over one’s in consensual sexual relationships children, and the right to engage Due Process.all come under the doctrine of Substantive Justices who of the word liberty, that believe in a more conservative interpretation deny that Substantive Due it means only freedom from incarceration, Process exists—Justice it an “oxymoron.” Scalia famously called wrongly decided. liberty, that it encompasses the liberty of thought and behavior, ad- liberty, that it encompasses the liberty Due Process and believe that these here to the notion of Substantive cases were correctly decided. answers come from the two nations our roots for the answer, different that formed the intellectual basis for the United States of America: England and France. view that liberty means free- The conservative dom from bodily restraint only is inherited from the English Common Law. view that liberty means freedom of mind and The progressive wold v. Connecticut Planned Parenthood They believe that the cases that guaranteed such rights, such as They believe that the cases that guaranteed 20 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 2 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 15 Side B 12/15/2020 11:16:45 12/15/2020 B 15 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 16 Side A 12/15/2020 11:16:45 14 YS- 21 S MPIRE E EGAL Since all L S OMAN ’ 124-25 (Rout- 15 R OME ORLD R W 16 . ALL OF THE NCIENT F A (Simon & Schuster, 1950) (pro- AITH F ANORAMA OF THE It is not sufficient to say that ECLINE AND 17 D UNISHMENT IN or other, legislators discuss and or other, legislators , A P GE OF P HE Since its founding as a Kingdom in A Adams v. Lindsell , T HE 18 IGMORE , T , no punishment without law. IBBON RIME AND G H. W , C URANT D OHN concentrated first on the Church. The Church Code Napoleon ILL DWARD AUMAN E W 3 J B destroyed what 2,000 years of armed conflict had not. destroyed what 2,000 years of armed of the Enlightenment merely challenged both; they de- of the Enlightenment merely challenged OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING ICHARD et al. R philosophes TEMS nulla poena sine lege See See generally See generally See generally The English Common Law is inherently conservative systemi- Law is inherently conservative The English Common If code law countries start the legal process by looking forward, If code law countries start the legal The Where the English Common Law embraced past authority, the Where the English Common Law 981-1098 (St. Paul West Publishing Co., 1928) (providing a historical perspective philosophes 16. (1818) 106 Eng. Rep. 250; 1 Barn. & Ald. 681. 17. 18. 15. 14. M K soul is inherited from the French Enlightenment.soul is inherited the systems Thus, of what liberty to achieve a full understanding must be compared means. cally. of the built on the foundation It is proudly and unapologetically past. use a modern version of the Roman In code law countries that Law, whether the Roman law was codified, this could more accurately be translated as Roman law was codified, this could no punishment without a statute. the English Common Law looks back. If a defendant is being sued, the past another court with superior court will be bound if years in the a similarly situated defendant. jurisdiction made a ruling concerning offer is communicated to the recipi- Today, if a revocation of a contract an acceptance, the revocation is ent after the recipient has posted that in 1818 a court at the King’s void, based solely on the strength Bench made a similar ruling in ledge, 1996). viding a comprehensive history of the emergence of the Church and then the royal houses of Europe). the adopt a series of rules of law that make sense to them going forward. of law that make sense to them adopt a series of rules had such power that Edward Gibbon, perhaps too much so, credits it had such power that Edward Gibbon, perhaps too much so, credits with causing the fall of Rome. stroyed both. Where the English Common Law looked back in time for looked back in time for what to embrace, the French Enlightenment what to reject. The might and wit of Voltaire, Diderot, Montesquieu, Rousseau, of the development of the English Common Law and the legal system in code law of the development of the English Common Law and the legal system in code countries). French Enlightenment rejected it.French Enlightenment rejected There were two primary forces collapse of Rome on September 4, that had governed Europe after the 426: the Church and the Monarchy. 145-49 (W.H. Smith Publishers Inc., 1985). 2020] and may not be upon is entirely forward looking, Any statute agreed in a substantive sense.applied retroactively in ancient As was said Rome, \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 3 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 16 Side A 12/15/2020 11:16:45 12/15/2020 A 16 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 16 Side B 12/15/2020 11:16:45 M K C Y 20 It The 22 19 [Vol. 54 (Simon & APOLEON N GE OF A HE , T URANT D 652 (Simon & Schuster, 1944). RIEL Act 2 (premiered January 14, 1900 in Rome). HRIST & A C OSCA (Simon & Schuster, 1953). Napoleon, of course, was subsequently de- Napoleon, of course, was subsequently , T URANT 21 D AESAR AND CREIGHTON LAW REVIEW ILL UCCINI , C W P ENAISSANCE captured the time and place perfectly: the rebels captured the time and place perfectly: R HE URANT IACOMO , T D G Tosca ILL See See generally URANT The Constitution of the United States is largely shaped by the The Constitution of the United States The Age of Voltaire paved the way for Rousseau, Revolution, and The Age of Voltaire paved the way D 20. The origins of this saying are unclear; for an overview of the era, see generally 22. 21. 19. W ILL would be a century before World War I ended most of the royal houses would be a century before World War that set the groundwork. for all time, but it was the Enlightenment English Common Law. of Independence is largely The Declaration shaped by the French Enlightenment. begin the exploration of this To contradiction, we turn our attention back 1,000 years. Church then survived as a dominant ruling force for 2,000 years, as a dominant ruling force Church then survived of attack.against all manner in the It survived a split in the Papacy and Avignon for with contesting Popes in Rome Fourteenth Century, nearly 70 years. of the the corruption and depravity It survived Borgias. from force through the challenge It survived as a ruling Henry VIII. and the separation by within of the Reformation It sur- from without of the Renaissance, vived as a ruling force the challenge death and face towards life.” when “man turned his back towards 800 B.C., thence to a Republic and on to an Empire, Rome had with- to a Republic and on to an Empire, 800 B.C., thence of foreign invasion.stood a millennium Yet it could not withstand the power of the Church. “Cae- the historian Will Durant has written, As had won.” met in the arena, and Christ sar and Christ had Schuster, 1975) (providing an overview of the history of the age of Napoleon). W posed twice, as was Charles X after the Bourbon Restoration. posed twice, as was Charles X after cheering Napoleon’s victory at Marengo, and Baron Scarpia trembling cheering Napoleon’s victory at Marengo, at Napoleon’s advance. Yet after the attack of the Enlightenment, it ceased to function as a Yet after the attack of the Enlightenment, governing institution. the assault on the Monarchy. The Enlightenment gave people the con- and judge what they saw; fidence and ability to reason for themselves had governed them, the judgment when looking at royal houses that was harsh. The Enlightenment led to the death of Louis XVI. Napo- such panic in the other royal leon’s subsequent ascendancy caused war on him and France, and they houses of Europe that they declared the battle of Austerlitz in 1805.were rewarded with obliteration at In Century before he crowned him- the opening years of the Nineteenth as liberating Europe from tyrants. self Emperor, Napoleon was seen Puccini’s 22 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 4 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 16 Side B 12/15/2020 11:16:45 12/15/2020 B 16 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 17 Side A 12/15/2020 11:16:45 23 169 EOPLES P Winters were Droughts were 23 PEAKING 25 -S There were denser 24 Rather, he sent advi- In the nature of things, 32 NGLISH 29 E Upon this chaotic scene “Digests and codes imposed 30 31 1-2 (Roman and Littlefield Inc., 1964). ISTORY OF THE LANTAGENET P , A H ENRY note 14, 1054. at 166-98 (providing historical background on William the , H AW HURCHILL L supra The English Channel, having widened in earlier cen- The English Channel, , C ARBER 26 B The Normans viewed the Britons as “louts and boors,” The Normans viewed the Britons OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING 28 OMMON INSTON IGMORE at 1. at 2. at 1. at 216. at 224. C ICHARD Id. Id. Id. Id. See generally id. Id. Id. 27 HE Any such progress was greatly halted by William’s death in 1087. Any such progress was greatly halted It was Henry’s purpose to unify the island.It was Henry’s purpose to unify To achieve that, he Upon this terrain, forbidding yet beautiful at once, William ar- Upon this terrain, forbidding yet It was so long ago that England looked different. It was so long ago 29. 24. 28. 1 W 31. 25. 26. 27. 3 W 32. 30. 23. R M K III. ENGLISH COMMON LAW THE A. T (Dodd, Mead and Company, 1956). colder; the Thames froze with some regularity. colder; the Thames more common. and wider forests and therefore fewer meadows. and wider forests sors to the corners of the island to study the customs that already ex- sors to the corners of the island to study the customs that already members of the opposite sexes found reason to get along, and there members of the opposite sexes found ideas. was some initial exchange of cultural II, who was succeeded by an- He was succeeded by his son William was much disagreement as vari- other of his sons, Henry I, but there the throne.ous relatives asserted rights to The young country dissolved into civil war for decades. emerged Henry II, the grandson of Henry I, in 1154. emerged Henry II, the grandson structure of law throughout the knew that he had to have a cohesive land.that the Norman con- The new King had the wisdom to know he attempted to impose any foreign quest was recent enough that had law on the Britons, it would be rejected. state on a subject people were in the Roman manner by an omnipotent alien to the spirit and tradition of England.” Conqueror and subsequent rulers). turies, provided protection and isolation to the island nation. and isolation to the island turies, provided protection John H. important role in this physical situation played an Wigmore notes that it was an island, of English law: “In the first place, the development its peoples and customs tended to and therefore isolated, and thus unity.” and “ruled by the force of sharpened steel.” and “ruled by the force of sharpened rived with his conquering army from Northern France in 1066.rived with his conquering army At to the customs of the inhabitants of first, no effort was made to adapt the Island. 2020] \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 5 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 17 Side A 12/15/2020 11:16:45 12/15/2020 A 17 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 17 Side B 12/15/2020 11:16:45 M K C Y 35 33 [Vol. 54 39 The legal Critically, 37 38 To aid in this . 36 per se , no cleric without the law. The pride in the law was such that even The pride in the law was such that 34 note 28, at 223. note 14, at 1061. note 14, at 1064. CREIGHTON LAW REVIEW supra , supra supra , , As Fortescue wrote, “Only the sons of gentlemen do study IGMORE IGMORE 40 HURCHILL at 221. at 1062. . . at 1081. . at 1083. Id. Id. Id Id Id nullus clericus sine causidicus The original fourteen have coalesced into the modern four: Lin- The original fourteen have coalesced These structures of preservation included a system of royal courts of preservation included a system These structures And who were these devotees? unsurprisingly, sons of They were, The law, with its conservative nature established in the first in- conservative nature established The law, with its This initial system of studying past customs provided the origin of This initial system of studying past 37. 3 W 35. 38. 34. 3 W 36. 1 C 39. 40. 33. isted. Law father of the English Common Henry II is known as the customs, not be- structures that preserved existing because he created at new legal principles cause his court arrived apprentices lived, ate, and learned the law together. apprentices lived, ate, and learned these Inns were as conservative structurally as the law was substan- these Inns were as conservative structurally tively. an army of profes- The Inns were “the fortress[es] from which in defence of English law.” sional devotees fought stubbornly endeavor, they organized themselves into Inns of Court. endeavor, they organized themselves and Middle Temple. coln’s Inn, Gray’s Inn, Inner Temple, designed to handle the increasing number of cases, an increased use of the increasing number of cases, designed to handle of writs.the jury, and a system changes, Through these structural which guarded and law a conservative spirit Henry “gave to English line.” from that time on in an unbroken preserved its continuity monks studied secular as well as sacred law; as it was said at the monks studied secular as well as time, the law in these hostels; there is scarce an eminent lawyer who is not the English ruling class. literally been true since the This had quite Normans. stance by the study of existing customs, took hold fast.stance by the study In the 1100s, a that, “England was wholly given foreign traveler in England noted over to the study of law.” Westminster Hall, which would hold the trial of King Charles I, of Westminster Hall, which would be the center of English legal life, Warren Hastings, and otherwise was built in 1099. on past decisions rather than for- precedent and our system of relying ward looking statutes. Already the law “rested on the unwritten cus- the inhabitants and interpreted, tom of the land as declared by developed, and applied by the judges. Lawyers could only ascertain it ancient decisions.” by studying reports and records of 24 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 6 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 17 Side B 12/15/2020 11:16:45 12/15/2020 B 17 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 18 Side A 12/15/2020 11:16:45 25 207 (The AW (ca. 1543)). L In Praise of HE T NGLIAE , or F A O Whereas the great EGUM DEAS 42 . I L In the late 1400s, Chief In the late 1400s, ND 44 A EN AUDIBUS L : M Of all of the fine attributes of the Of all of the fine E , D 41 It was not that Roman law simply It was not that ”) on that court or any other. 43 De Legibus Angliae ORTESCUE URISPRUDENCE This spread across the continent and the This spread across the continent en droit F De Laudibus Legum Angliae De Laudibus Legum , J 47 OHN Not only did it praise the English Common Law Not only did it praise the English . J IR 45 The most famous modern incarnation is, of course, The most famous modern incarnation . ATTERSON 48 OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING W. P . at 1077. 46 . (quoting S . at 1062. . at 1064. . at 1078. . at 1078-79. . DWIN Id Id Id See id Id Id Id In the Thirteenth Century, the early English scholar Henry de Century, the early English scholar In the Thirteenth In addition to continuing the work of Fortescue in solidifying the In addition to continuing the work Thus, when the Supreme Being formed the universe, and cre- ated matter out of nothing, he impressed certain principles upon that matter . . . so, when he created man . . . he laid Nor is there disagreement when viewed from across the English Nor is there disagreement when 48. 42. 45. 43. 44. 46. 47. E 41. M K a gentleman by birth and fortune.” a gentleman by birth Foundation Press, Inc., 1953). Code of Justinian was just that, code law, Wigmore notes that Bracton was just that, code law, Wigmore Code of Justinian of cases decided in of his text from his observations “composed most court. not a in substance a native English, So his book represented of law.” Romanesque, practice Justice Fortescue wrote Justice Fortescue English ruling class, accepting change is not one of them. accepting change is not one English ruling class, famous Bracton wrote his continuity of the conservative nature of the English Common Law, Sir continuity of the conservative nature Blackstone, famously espoused Edward Coke, followed by Sir William the English idea of Natural Law. Blackstone described Natural Law as follows: failed to take hold; it was actively rejected. failed to take hold; centuries. categorical rejection Edwin Patterson has noted that, “The in civil law countries, with some of case law as ‘binding’ was continued modifications.” system, it actively attacked Roman code law.system, it actively attacked Roman The imperial designs of law was practiced) and the blatant Charles V of France (where Roman Alexander VI) made it somewhat corruption of Rodrigo Borgia (Pope patriotism, to reject anything Ro- easier for England, swelling with man. Chief Justice In the Sixteenth Century, Fortescue’s successor, his Institutes on the Lawes of Coke, continued this theme with England. the Code Napoleon; in France a single decision of the highest court is the Code Napoleon; in France a single not considered binding (“ Channel. rejects the idea Justinian’s Code from 533 A.D. specifically that a previous legal ruling of precedent, stating it to be “impossible” be considered binding. the English Law 2020] \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 7 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 18 Side A 12/15/2020 11:16:45 12/15/2020 A 18 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 18 Side B 12/15/2020 11:16:45 M K C Y 155 [Vol. 54 EOPLES 38-40 (Uni- Patterson 51 P AW King George L : 54 PEAKING 53 NGLISH -S 49 There was no objec- E act 1, sc. 2 (1882), https:// 55 Iolanthe NGLISH E OLANTHE Instruction to the Virginia Council One is reminded of the lyrics , I 52 “The law was already there, in “The law was already if the law existed in nature, how 50 ULLIVAN S OMMENTARIES ON THE ISTORY OF THE ONSTITUTION , C C RTHUR , A H & A note 28, at 224. note 14, at 1100 (quoting Justice Story (1853)). note 47, at 333. LACKSTONE CREIGHTON LAW REVIEW Of everything that’s excellent. It has no kind of fault or flaw, B The Law is the true embodiment HURCHILL supra ILBERT , supra supra And I, my Lords, embody the Law. , C , S. G ILLIAM W INSTON IGMORE NFLUENCE ON THE HURCHILL IR at 1098-99 (quoting King George III, ILLIAM I ATTERSON Id. HE down certain immutable laws . . . and gave him the faculty of laws . . . and gave him the down certain immutable the purport of those laws. reason to discover Which leads us to the United States of America.Which leads us to the United States The English Winston Churchill described the views of Chief Justice Sir Ed- described the views of Chief Justice Winston Churchill towards a conservative viewpoint.Note the implications It is con- 51. 1 C 50. 2 W 54. 3 W 52. P 55. 53. W 49. 1 S (Dodd, Mead & Co., 1956). versity of Chicago Press, 1979) (1763). describes this theory as one in which the law is “absolute, immutable describes this theory as one in which and of universal validity for all times.” III instructed the Virginia Council, “the disposing of all causes hap- III instructed the Virginia Council, pening within the same” should be “done as near to the common laws of England and the equity thereof as may be.” tion. noted a century later that, “the common law of England is It was gsarchive.net/iolanthe/iollib.pdf. of Sir William Gilbert in Gilbert & Sullivan’s of Sir William Gilbert in Gilbert the customs of the land, and it was only a matter of discovering it by land, and it was only a matter the customs of the in earlier cases, comparison of recorded decisions diligent study and court.” the particular dispute before the and applying it to Common Law came over with the Mayflower.Common Law came over with the Justice Story has writ- them the general principles of the ten, “Our ancestors brought with birthright . . . .” common law, and claimed it as their ward Coke in a similar way: “Coke himself was reluctant to admit that way: “Coke himself was reluctant ward Coke in a similar or even changed.law could be made, await- It existed already, merely expostulation.” ing revelation and rather than statute.servative enough to rely on precedent It is the law preserved by a conserva- equally conservative enough to have tive part of society. Yet Blackstone and Coke achieved a new level of conservatism, perhaps unwittingly; could it be changed? On what basis could it be challenged? could it be changed? On what basis (1606)). It should be noted that Sir William was in possession of a law degree. It should be noted that Sir William B. T 26 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 8 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 18 Side B 12/15/2020 11:16:45 12/15/2020 B 18 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 19 Side A 12/15/2020 11:16:45 58 27 McDonald v. City Critically, on the eve of our Critically, on the 56 , King George III’s attempt to Heller note 14, at 1083. Several of them became Chief Justices of state Several of them became Chief Justices 60 by those who drafted and ratified the Bill of supra , Justice Alito noted the impact of English legal history on Justice Alito noted the impact of English 57 “During the 1788 ratification debates, the fear that OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING 61 62 , IGMORE More than 200 American lawyers had trained at one of the More than 200 American lawyers at 1099 (quoting Mr. West, attorney general to the Board of Trade (1720)). at 1098. The right to keep and bear arms was considered no less Blackstone’s assessment was shared by the American Blackstone’s assessment was shared Id. Id. Id. Id. 59 disarm the colonists in the 1760’s and 1770’s “provoked po- disarm the colonists in the 1760’s their rights as En- lemical reactions by Americans invoking glishmen to keep arms.” fundamental [T]he 1689 English Bill of Rights explicitly protected a right [T]he 1689 English Bill of Rights . . . by 1765, Blackstone to keep arms for self-defense, and to keep and bear arms was was able to assert that the right Englishmen.” “one of the fundamental rights of colonists. As we noted in the federal government would disarm the people in order to Rights. Numerous Justices have noted how the English Common Law in- Numerous Justices have noted how Take, for example, the Second Amendment. In The Inns of Court themselves influenced the Constitution.The Inns of Court Ar- 59. 57. Resolved, N.C.D. 5, 1st Continental Cong. (1774), https://www.ushistory.org/ 58. 3 W 60. 56. 61. 62. 561 U.S. 742 (2010). M K the common law of the plantations.” the common law Revolution in 1774, the Continental Congress wrote that it was fitting the Continental Congress wrote Revolution in 1774, to the common law respective colonies are entitled to declare that, “the of England.” supreme courts, and critically, several sat in the Constitutional supreme courts, and critically, Convention. the Framers’ approach to drafting the Second Amendment: the Framers’ approach to drafting declaration/related/decres.html#:~:text=5.,the%20course%20of%20that%20law. Inns in the 1700s. structed the drafting of the Constitution. While there is great debate should be applied in modern times, as to whether and how that history it seems on the actual historical there is far less disagreement than influence. thur Middleton, afterwards Chairman of the Committee of Five at afterwards Chairman of the Committee thur Middleton, Middle Temple. the Constitution, studied at Philadelphia to draft of Chicago 2020] Blackstone, a on the English Law of Sir William The Commentaries popularity that at Middle Temple, were of such former apprentice was de- sold in the colonies before independence 2,500 copies were clared. \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 9 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 19 Side A 12/15/2020 11:16:45 12/15/2020 A 19 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 19 Side B 12/15/2020 11:16:45 M K C Y . 300 (S. [Vol. 54 PP A S ’ DITOR Justice Scalia re- Justice Scalia re- , E 64 65 . OMMENTARIES C S ’ 63 LACKSTONE CREIGHTON LAW REVIEW District of Columbia v. Heller 66 , 561 U.S. at 768-69 (citations omitted) (emphasis added). , 554 U.S. at 598. . at 769 (quoting 1 B As used in the Due Process Clauses, “liberty” most likely As used in the Due Process Clauses, Both of the Constitution’s Due Process Clauses reach McDonald Id Heller impose rule through a standing army or select militia was a standing army or select militia impose rule through power- rhetoric.” . . . This is surely pervasive in Antifederalist in the right was regarded as fundamental ful evidence that here. the sense relevant [W]hen the able-bodied men of a nation are trained in arms [W]hen the able-bodied men of a to resist tyranny . . . . and organized, they are better able way tyrants had eliminated [English] history showed that the men was not by ban- a militia consisting of all the able-bodied away the people’s arms, ning the militia but simply by taking army to suppress politi- enabling a select militia or standing occurred in England that cal opponents. This is what had to have arms in the English prompted codification of the right Bill of Rights. Critically, the English Common Law and legal history were in- Critically, the English Common of changing situation, or refers to “the power of locomotion, place one’s own inclina- removing one’s person to whatsoever or restraint, unless by tion may direct; without imprisonment is drawn from the histori- due course of law.” That definition cal roots of the Clauses and is consistent with our Constitu- tion’s text and structure. back to Magna Carta . . . . Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its word- ing as follows: “No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be Justice Alito further noted that St. George Tucker, Professor of noted that St. George Tucker, Justice Alito further 65. 554 U.S. 570 (2008). 66. 64. 63. Tucker ed., 1803)). lied similarly on English history and context in another Second English history and context lied similarly on Amendment case, fers to the Restoration and Revolutionary period in England as to why fers to the Restoration and Revolutionary the right is so important: structive in drafting the Fifth Amendment, its phrases and the mean- structive in drafting the Fifth Amendment, by the Fourteenth Amendment. ing of the word liberty later borrowed of what the word liberty Justice Thomas gave a detailed description quoting at length: meant at English law, and it is worth Law at William and Mary during the drafting of the Bill of Rights, and Mary during the drafting of Law at William bear arms as ‘the describing “the right to keep and cited Blackstone on the right liberty’ and explained that prohibitions true palladium of ‘on the brink of destruction.’”would place liberty 28 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 10 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 19 Side B 12/15/2020 11:16:45 12/15/2020 B 19 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 20 Side A 12/15/2020 11:16:45 29 67 OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING NLIGHTENMENT . . . . heavily upon Blackstone’s formula- The Framers drew Due Process Clause, In enacting the Fifth Amendment’s . . . . “[L]iberty in the . . . As one later commentator observed, E HE outlawed, or exiled, or any otherwise destroyed; nor will we or any otherwise destroyed; nor outlawed, or exiled, judgment nor condemn him, but by lawful not pass upon him, the law of the land.” of his peers or by that in early State Constitutions tion, adopting provisions to re- Carta’s language, but were modified replicated Magna decisions “life, liberty, or property.” State fer specifically to and the provisions between the founding interpreting these uniformly Fourteenth Amendment almost ratification of the refer only to freedom from construed the word “liberty” to physical restraint . . . . the “life, liberty, or the Framers similarly chose to employ read in light of the history property” formulation . . . . When see how the “liberty” pro- of that formulation, it is hard to to include anything tected by the Clause could be interpreted restraint. broader than freedom from physical much more in relation to eighteenth century was thought of from, not freedom to, free- ‘negative liberty’; that is, freedom political evils, including ar- dom from a number of social and one scholar put it in 1776, bitrary government power.” Or as negative, and is only “[T]he common idea of liberty is merely the absence of restraint.” The Age of Enlightenment extended, of course, past the borders of Agree or disagree with Justice Thomas’s jurisprudence, this his- Agree or disagree with Justice Thomas’s 67. Obergefell v. Hodges, 135 S. Ct. 2584, 2632-35 (2015) (Thomas, J. dissenting) M K France; France cannot, and does not, claim the movement entirely for France; France cannot, and does not, claim the movement entirely herself. gave us Locke, Germany gave us Kant, and Scotland England tory is generally not questioned. English law from the Magna Carta that liberty meant only not through Blackstone was utterly consistent, being in a prison of some sort. Thus are we presented with over- interest passed to us from En- whelming evidence of what the liberty gland meant in its original form. the liberty interest To contemplate passed from the Enlightenment we now turn our gaze across the En- glish Channel to that fairest country on earth, France. IV. THE FRENCH ENLIGHTENMENT A. T (emphasis omitted) (citations omitted). 2020] \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 11 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 20 Side A 12/15/2020 11:16:45 12/15/2020 A 20 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 20 Side B 12/15/2020 11:16:45 M K C Y It phi- 68 [Vol. 54 to argue against 606 (Simon & Schuster, ; even Voltaire, while While refusing to pay 72 OLTAIRE V per se philosophes and embraced beauty and hu- GE OF 69 A HE , T and Catholic Christianity as it then and Catholic Christianity as it When Jefferson arrived in France, he 73 URANT D built on this legacy and used reason to replace built on this legacy and used reason RIEL led the movement. were a group of great They CREIGHTON LAW REVIEW philosophes note 68, at 606. 71 (though it is said he did decline to reject Satan on (though it is said he did decline to & A 70 note 20. supra , URANT philosophes D philosophes . . at 608. . ILL admitted the limitations of reason (especially Hume, if he admitted the limitations of reason URANT See supra Id Id Id The During its first period, the Enlightenment aimed itself squarely During its first period, the Enlightenment Numerous reasons existed for the Numerous reasons existed for the 69. 71. 70. D 72. 73. 68. W is not surprising; during the Early and Middle Ages, many of the pre- during the Early and Middle Ages, is not surprising; survived and much of the learning and knowledge cious documents and the Renais- darkness between the fall of Rome the 1,000 years of of French hands. sance in the safety gave us Hume. of it all, France remained the epicenter Nevertheless, latest notions.” Europe looked to France for the and “all educated the rule of the Church. Like in England, the Church in France was the rule of the Church. Like in England, land; unlike England, the French monumentally wealthy in gold and Church was accountable to a foreign power. Inc., 1965). attacking every aspect of organized religion, professed a belief in God attacking every aspect of organized for his entire life taxes, it drained a tremendous amount of money away from a popu- lace often desperately poor. manity, the existed in France.” was amazed that a country with the most perfect soil and air on earth could produce so much hunger. controlled nearly all of The Church ab- the schools, “inculcating the minds of the young with stupefying ignorance. the more knowledge That of course had a cascading effect; one desires.one acquires in life, the more knowledge Though the minds and huge personalities; often eccentric, sometimes incorrect in personalities; often eccentric, sometimes minds and huge questioning and searching.hindsight, yet always not accept They did found them.conditions as they its back If the Renaissance “turned towards death and face towards life” his deathbed as “this was no time to be making enemies”).his deathbed as “this was no time The argu- historian Will Durant, “an argu- ment was, in the words of the great ment between the truly can be considered one), there was no doubt that the reasoning of truly can be considered one), there main pillars that had ruled dur- the Enlightenment threw off the two Catholic Church and the Monar- ing the Early and Middle Ages: the chy. freedom from bodily Rather than viewing liberty as merely that of soul and mind. restraint, they sought a broader liberty, at the Church. It was not aimed at God losophes 30 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 12 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 20 Side B 12/15/2020 11:16:45 12/15/2020 B 20 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 21 Side A 12/15/2020 11:16:45 , , 81 75 31 , or see also ame The old Candide 84 So did young men sanctioned by both ´ ecrasez l’infˆ 78 saw and rejected this saw and rejected 80 , was somewhat new. , was somewhat His numerous writings 82 , https://www.merriam-webster.com/ COM . philosophes philosophes EBSTER note 68, at 736-44. -W and imprisonment 79 supra , ERRIAM They wrote, if not for the ‘common man’ (who They wrote, if not After initial inquiries as to the tenets of the old After initial inquiries as to the tenets , M URANT 76 83 D ame , https://translate.google.com/?um=1&ie=UTF-8&hl=en&client=tw- (Feb. 26, 2012, 5:53 AM), https://www.gradesaver.com/candide/q-and- What Ways Did Voltaire Criticize the Church and Religion? The Church had been behind the massacres of Hugue- The Church had OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING COM . 74 at 357. . at 3. . . . at 606. . . . at 41. RANSLATE This style popularized the movement, and again “all educated This style popularized the movement, ´ Id Ecrasez L’infˆ See generally Id Id Id Id Id. Id Id AVER T 77 S Voltaire’s ire had risen when he was young, his brilliance in writ- Voltaire’s ire had risen when he was His works often included the expression His works often included the expression Voltaire must be mentioned first.Voltaire must be in- The approach of Voltaire’s 83. Aslan, 82. 84. 78. 81. 75. 76. 77. 79. 80. 74. OOGLE RADE M K Voltaire used a conversation between an old man and Candide in El- Voltaire used a conversation between dorado mercilessly. G surdities.” “crush the infamous,” referring to abuses by the clergy and royalty. “crush the infamous,” referring to across the Atlantic. ing causing him both exile the Church and Crown. They picked the wrong enemy. past, initially aiming their strongest intellectual guns at the Church. their strongest intellectual guns past, initially aiming of the practices of of the soul from the superstition They sought liberty the day. as with other tellectual attack, chipped away piece by piece at the rule of the Church.chipped away piece by piece at the In dictionary/%C3%A9crasez%20l%27inf%C3%A2me (last visited Aug. 18, 2020); man’s religion, Candide asked to see some of their priests. man’s religion, Candide asked to most likely could not read), then in a manner and style that was acces- not read), then in a manner and style most likely could sible.clarity. They used wit; they prized brevity and Responding to a all political systems and decisions 1,000-page treatise arguing that Voltaire responded as Durant de- could be attributed to the weather, scribes: had gone Protestant “He thought it more likely that England than because Henry VIII was because Anne Boleyn was beautiful cold.” ob#view=home&op=translate&sl=fr&tl=en&text=%C3%A9crasez%20l’inf%C3%A2me (last visited Sept. 14, 2020). a/what-ways-did-voltaire-criti-cize-the-church-and-religion-64689. nots and numerous other sects.nots and numerous The Europe looked to France for the latest notions.” Europe looked to France for the latest G The phrase refers to abuses of the people by royalty and the clergy The phrase refers to abuses of the the superstition and intolerance that Voltaire saw around him and people. that the clergy bred within the 2020] or their like in recluses, talking to themselves They were not “solemn esoteric gibberish.” \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 13 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 21 Side A 12/15/2020 11:16:45 12/15/2020 A 21 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 21 Side B 12/15/2020 11:16:45 M K , C Y 92 [Vol. 54 of Denis . Its contri- Candide re- Describing his 85 90 , Voltaire attacked Encyclopedie . (Mar. 13, 2015) https://www. Encyclopedie EV R ARIS 91 This use of blackmail by way of In 1761, Jean Calas was falsely In 1761, Jean Calas , P 89 88 Treatise on Toleration (May 30, 2019), https://www.bobdesautels.com/blog/ After Paris Attacks, Voltaire’s ‘Tolerance’ is Back in Vogue Superstition sets the whole world in flames; philosophy Broken on the Wheel CREIGHTON LAW REVIEW These are but two examples of a lifetime’s work. These are but two ESAUTELS note 68, at 786. 87 D (Feb. 15, 2015), https://www.npr.org/sections/parallels/2015/02/15/ OB In his 1763 supra , 86 , B ADIO Diderot took this world of knowledge and aimed it at the Diderot took this world of knowledge . R . . at 623. . at 633. . . 93 URANT Id Id Id Id Id UB P Nor did Voltaire limit his attack on the Church to the written limit his attack on the Church Nor did Voltaire Any such discussion must include the Any such discussion must include L ’ 89. 91. D 92. 88. Ken Armstrong, 90. Bob Desautels, 93. 86. 87. Eleanor Beardsley, 85. AT N man responded that they all had direct relationships with God and they all had direct relationships man responded that need of priests as an intermediary. therefore had no Diderot.unfocused learning; “he Diderot had a youth of wide but learned nearly everything else.” never learned discipline, but he bution may not be measured in specifics but in its breathtaking scope. bution may not be measured in specifics of Bacon, Descartes, Hobbs, Locke, In philosophy, it included works Galileo, Descartes, and and Spinoza; in science, Copernicus, Newton. plied in surprise: “What! You have no monks who teach, argue, rule, “What! You have no monks who plied in surprise: old man did not who don’t agree with them?” The plot and burn people understand. life, the great historian Will Durant wrote, “When we cease to honor life, the great historian Will Durant Voltaire we are unworthy of freedom.” more directly and with less humor the persecution caused by the with less humor the persecution more directly and Catholic Church. theparisreview.org/blog/2015/03/13/broken-on-the-wheel/. superstition was precisely what offended Voltaire the most.superstition was precisely what offended He spent he succeeded in doing in 1778. years clearing Calas’ name, which Voltaire was publicly em- Upon returning to Paris from Toulouse, braced by Benjamin Franklin. Voltaire said, “Superstition sets the quenches them.” whole world in flames; philosophy accused of murdering his own son; in reality, his only crime was being accused of murdering his own son; an outspoken Protestant. The Catholic Church ordered witnesses to hearsay and threatened excommu- come forth with nothing more than nication for those who did not do so. 2019/5/30/superstition-sets-the-whole-world-in-flames-philosophy-quenches-them-fra- nois-marie-arouet-voltaire. word. the case of Jean Calas that he waded He was so outraged by legal system. into the dense French 385422239/after-paris-attacks-voltaires-tolerance-is-back-in-vogue. Church. condemned it as an The Archbishop Cristophe de Beaumont quenches them This broad knowledge led to his work on the This broad knowledge led to his work 32 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 14 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 21 Side B 12/15/2020 11:16:45 12/15/2020 B 21 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 22 Side A 12/15/2020 11:16:45 95 94 33 Its SSAYS 96 E , https:// ` ERES ELECTED It should be , the monarchy : S 98 TRANG ´ E to his friends. ISTORY H philosophes FFAIRES , democratic and social Repub- , democratic and A RACTICING It was the summation of the It was the summation ES Encyclopedie , P Aristocratic birth indicated actual 97 D T secular 100 UCHMAN E The great historian Barbara Tuchman has The great historian Barbara Tuchman W. T UROPE Foreign Influence: Thomas Jefferson and the Thinkers of won. 31 (Mar. 15, 2015) (M.A. thesis, Georgetown University) 102 He was at the center of it all; Horace Walpole, He was at the center of it all; Horace L’E ARBARA 104 note 52, at 695. B .” Noble blood was thought to make one actually better, Noble blood was thought to make supra , OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING ` ERE DE 101 philosophes Probably neither is more true or false than the other. Probably neither is more true or . at 639. . . at 649. . . INIST URANT Id. Id. See generally Id Id Id Id Id philosophes The 103 The Enlightenment turned its sights next on the Monarchy, seek- The Enlightenment turned its sights The Baron D’Holbach took especially fierce aim.The Baron D’Holbach took especially Born to nobility 99 95. 96. 97. 98. 99. M 94. 100. Steven J. Schroeppel, 101. 102. 103. 104. D M K attack on religion, and in February of 1762 Diderot was arrested. and in February of 1762 Diderot attack on religion, influence was such that forty-three editions were published in twenty- that forty-three editions were published influence was such countries. five years in numerous www.diplomatie.gouv.fr/en/coming-to-france/france-facts/secularism-and-religious-free 18, dom-in-france/article/secularism-and-religious-freedom-in-france (last visited Aug. 2020). noted today that the French Constitution of 1958 begins with the the French Constitution of 1958 noted today that an indivisible, words: “France is was as much, if not more, responsible for the pathetic condition of was as much, if not more, responsible France’s citizens. Equally critically, justification for the Monarchy than did justification for the had no more basis in rational thought Church.on the “[m]ediaeval con- The Monarchy was, of course, based cept of the divine right of kings.” lic.” movement, the “revolution before the Revolution.” movement, the superiority. noted that before the Industrial Revolution it was thought there was noted that before the Industrial Revolution and kings,” and that afterwards the inherent superiority in “captains inherent wisdom in the “common idea has formed that there is man.” ing liberty in more earthly matters. To the (emphasis omitted), https://repository.library.georgetown.edu/bitstream/handle/10822/ 760883/Schroeppel_georgetown_0076M_12843.pdf. not just more fortunate. and wealth, he betrayed his class with equal vigor to Franklin and wealth, he betrayed his class Roosevelt. as the “best loved His influence was widespread, described of the the French Revolutionary Era (Random House Publishing, 2011). 2020] Fredrick II arrange protection for Diderot through Voltaire tried to which stuck); called “Le Grand,” a description (whom Voltaire recommended the Thomas Jefferson \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 15 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 22 Side A 12/15/2020 11:16:45 12/15/2020 A 22 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 22 Side B 12/15/2020 11:16:45 M K A- C Y 108 N ıtre . 13, 16 CI [Vol. 54 S ] also OF Le Nozze de ` EME DE LA . YST CAD 107 . A RK , chap. XIV). philosophes ORAL Du Contrat Social; ou M , 10 J. A . Rousseau perhaps lacked ONDE M (The Baron D’Holbach), I S were both causing the tide of history philosophes made history’s most famous argument HIRY T HYSIQUE ET DU P Rousseau and Monarchy ENRY 105 note 100, at 32. H philosophes CREIGHTON LAW REVIEW ONDE AUL M supra 109 OIX DU L (quoting P 106 TURE OU . at 695. . at 708. ES Id Id Id. D began to cast arguments and ideas in terms of equality of per- began to cast arguments and ideas were beginning to insist sons in general . . . . Common people existences deserved some that they mattered too, that their voice in their lot and respect, that they deserved a governance. In this way, Rousseau and D’Holbach went further than Voltaire In this way, Rousseau and D’Holbach Jean Jacques Rousseau agreed. His D’Holbach viewed monarchs as inevitably exploiting the monarchs as inevitably D’Holbach viewed ener- globe we see only unjust sovereigns, On the face of this by licen- corrupted by flattery. Depraved vated by luxury, of talents, wicked by impurity, devoid tiousness, made energy for . . and incapable of exerting an without morals . states they govern. They are consequently the benefit of the and indif- with the welfare of their people, but little occupied they are often igno- ferent to their duties, of which, indeed, . . to feed their insatiable rant. Stimulated by the desire . depopulating wars, and ambition, they engage in useless, objects which are the never occupy their minds with those of their nation. most important to the happiness looked to discredit absolute monarchy in particular, and did looked to discredit absolute monarchy They [the so successfully for many readers. 109. Schroeppel, 108. Gordon H. McNeill, 106. 107. 105. son of Britain’s first Prime Minister, called D’Holbach “the maˆ first Prime Minister, called D’Holbach son of Britain’s d’hotel of philosophy.” (1957), https://scholarworks.uark.edu/cgi/viewcontent.cgi?article=3234&context=jaas. the clarity, or at least eloquence, of Voltaire. But his writings reached the middle and lower classes at astonishing levels. As with all histori- cal movements, the and being carried by it.ideas were sweeping through Revolutionary Europe; change was occurring at a breathtaking rate. In against monarchy. Rousseau argued with all of his force against the that power must rest with the peo- divine right of kings, maintaining ple. for a king ei- He “insisted that there were inevitable tendencies and malicious, to want to keep his ther to be or to become narrow to be inferior men, and for the people backward, for his appointees throne infants and imbeciles.” hereditary principle to bring to the and the earlier generation of majority: Principes du Droit Politique Rousseau 34 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 16 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 22 Side B 12/15/2020 11:16:45 12/15/2020 B 22 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 23 Side A 12/15/2020 11:16:45 35 philo- reprinted Sons of the 867 (Simon & (1993), 110 98 (W.W. Norton & 18, 24 (West Academic EVOLUTION ISTORY EDERALISM DEAS R I H F GE OF A NTIMATE ISTORY OF I HE N H OUSSEAU AND , T : A , R destroyed the ancient pillars of the destroyed the ancient pillars of ITRICK ECLARATION K C URANT D EFFERSON PEECH IN THE M D J S RIC RIEL HOMAS & E philosophes & A , T REEDOM OF LKINS , F E RODIE URANT OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING B 113 D LASI NFLUENCE ON THE “[T]he works of Locke and Montesquieu, Vatell and James Madison “devoured” Enlightenment writings at James Madison “devoured” Enlightenment B . at 23. ILL I AWN TANLEY Id of 1786, that greatest achievement of classical music, Mozart achievement of classical music, of 1786, that greatest who undermined the intellectual foundations of a millennium who undermined the intellectual 112 111 HE Louis XVI was the first to go in 1793.Louis XVI was the Holy Ro- Frances II of the Thus had the The influence of the Age of Enlightenment on the Founders was The influence of the Age of Enlightenment INCENT V 111. F 112. S 113. 110. W M K French Enlightenment: there is no better way to describe them.French Enlightenment: there is In works of the great Enlightenment 1759, John Adams began reading himself to read more Montes- figures, specifically admonishing quieu. Schuster, 1967). Co., Inc., 1974). Publishing, 2015). past. with the new country We must now turn to their relationship across the sea. B. T Princeton under the brilliant tutelage of Professor John Wither- spoon. Burlamaqui, even Rousseau and Voltaire, were more or less basic equipment for anyone intellectually concerned with public questions.” had to disguise his revolutionary themes behind the Opera Comique revolutionary themes behind the had to disguise his Vienna. De Ponte to escape the censors of libretto of Lorenzo By 1803, to the great Eroica to hide nothing; his title page Beethoven needed then seen as the to pre-Emperor Napoleon, Symphony was dedicated liberator of Europe. tore up the known to history, Beethoven Well crowned himself December 2, 1804 when Napoleon dedication after Emperor. hands of Napoleon in 1806 after defeat at the man Empire abdicated at the Battle of Austerlitz. Napoleon himself was deposed for the sec- ond and final time in 1815. After the Restoration, the returned Bour- bon Charles X abdicated in 1830. Though the final rupture of the old World War I, it was the houses would not be complete until set the wheels in motion. of the rules of kings and queens and profound. “[T]he writings of Durant writes without hyperbole: and a hundred others had pre- Voltaire, Rousseau, Diderot, Raynal, colonial as well as intellectual liber- pared the French mind to support Franklin, leaders—Washington, ation, and many American Jefferson—were sons of the French Enlightenment.” in sophes 2020] Figaro \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 17 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 23 Side A 12/15/2020 11:16:45 12/15/2020 A 23 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 23 Side B 12/15/2020 11:16:45 M K C Y philo- [Vol. 54 The three 119 3 (Little, Brown and Com- AN M Jefferson, along with Ben- 116 IGHTS OF R 118 EFFERSON AND THE note 100, at 49-50. CREIGHTON LAW REVIEW Franklin greeted the arrival of Jefferson with de- Franklin greeted the arrival of Jefferson , J note 107, at 868. e Descartes, Voltaire, and Thomas Hobbes e Descartes, Voltaire, and Thomas – supra 117 ALONE supra M 115 . at 6. . at 3. . at 4. UMAS Jefferson was a Francophile in all ways, from the intellectual Francophile in all ways, from the Jefferson was a Id Id Id . the Duc de La Soon his dinner table regularly included When the Declaration of Independence was translated into of Independence was translated When the Declaration As Steven Schroeppell writes: As Steven Schroeppell of the ma- great difficulty, trace the origins One may, without of the political tenets and beliefs to some jority of Jefferson’s who were indeed remark- great writers of the Enlightenment as Jean-Jacques Rous- able theorizers and innovators, such Montesquieu, Isaac seau, John Locke, Francis Bacon, Newton, Ren´ preserved personal works by each may be found in Jefferson’s library. John Adams arrived in Paris a week after Jefferson. John Adams arrived in Paris a week The sources of the principles that lie at the core of Jefferson’s sys- The sources of the principles that 114 117. 116. D 115. Schroeppel, 118. 119. 114. Durant, French, France rejoiced, recognizing its influence on the new coun- recognizing its influence French, France rejoiced, try. dined together and made the beginnings of a social circle.dined together and made the beginnings This circle with whom Jefferson had great quickly expanded to include those philosophical connections. while, Jefferson was ap- Within a short pointed to succeed Benjamin Franklin as Minister to France, and Ad- ams left for London, having just been appointed Ambassador to the Court of St. James.filled the vacuum with Jefferson quickly pany, 1951). jamin Franklin and John Adams, had been appointed Ministers jamin Franklin and John Adams, with various European nations. Plenipotentiary to negotiate treaties for several years, earning a col- The elder Franklin had been in Paris orful reputation. light, as he greatly admired the shining intellect and courteous light, as he greatly admired the manners of the Virginian. movements to food and wine to the architecture.movements to food based Mon- Jefferson jutting out towards design of the Louvre, its wings ticello itself on the intimidating and welcoming.the visitor, at once be- This relationship France defined the new country. tween Jefferson and sophes tem of political beliefs are readily identifiable.tem of political beliefs are readily However, it was more the other.complex than one simply influencing The ideas of French Jefferson and the others, and then liberty flowed through the mind of flowed back to France. In early August of 1784, Thomas Jefferson ar- Paris. rived with his daughter Patsy in 36 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 18 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 23 Side B 12/15/2020 11:16:45 12/15/2020 B 23 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 24 Side A 12/15/2020 11:16:45 37 , https:// : “Liberty COM . ACTS F para. 4 (1789). eclaration D´ ITIZEN eclaration des droits de eclaration des droits C D´ ONSTITUTION , C and his expansive view of the and his expansive 121 AN AND OF THE M 124 IGHTS OF R of 1789. significant influence Jefferson had 120 note 100, at 43 (quoting letter from Thomas Jefferson to note 100, at iv. supra supra OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING This was how Thomas Jefferson saw liberty. This was how Thomas . ECLARATION OF THE 122 Id Drafting the Declaration of Independence 123 This was also how Jefferson saw a liberty interest when he wrote This was also how Jefferson saw a But happen it did. We need not guess at what Jefferson meant by greatest focus was on that of Of these rights, perhaps Jefferson’s This is a far distance from the English concept of a liberty interest Lafayette was the primary author of the Lafayette was the 124. Schroeppel, 123. 122. D 121. Schroeppel, 120. M K Rochefoucauld, the Marquis de Cordecet, and of special interest, the Marquis de Cordecet, and of special Rochefoucauld, the Marquis de Lafayette. www.constitutionfacts.com/us-declaration-of-independence/drafting-the-declaration/ (last visited Aug. 19, 2020). consists of doing anything which does not harm others: thus, the exer- anything which does not harm others: consists of doing borders which rights of each man has only those cise of the natural of these same of the society the fruition assure other members rights.” word “Liberty” may be seen in Article IV of the word “Liberty” may through Lafayette on this document, through Lafayette Isaac H. Tiffany (April 4, 1819)). V. CONCLUSION the Declaration of Independence. Of course, it almost did not happen. Adams should draft the Declara- There was some thought that John tion of Independence. Adams, however, with a modesty that served import, told Thomas Jefferson the cause and history with singular author the Declaration of Indepen- that he indeed should be the one to dence. Jefferson asked why, Though historical accounts vary, when first, you are a Virginian, and a Adams said in reply that, “Reason head of this business.Virginian ought to appear at the Reason sec- and unpopular. You are very much ond, I am obnoxious, suspected, otherwise. times better than I Reason third, you can write ten can.” liberty. if not in personal It was the theme of his life, in theory practice. liberty—the to lead the life, as best one can manage, that one right by unjust external control or chooses to lead, without being fettered interference. Jefferson characterized it thus: “rightful liberty is unob- by structed action according to our will within limits drawn around us the equal rights of others.” of merely not being locked in the Tower of London. This view is also not inconsistent with strands of constitutional jurisprudence that l’homme et du citoyen 2020] \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 19 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 24 Side A 12/15/2020 11:16:45 12/15/2020 A 24 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 24 Side B 12/15/2020 11:16:45 M K C Y 129 [Vol. 54 Justice 128 126 : , philosophes Justice O’Connor 127 Poe v. Ullman 33 (Oxford University Press, 2003). Planned Parenthood v. Casey Planned Parenthood EFFERSON Dissenting in J 125 . HOMAS CREIGHTON LAW REVIEW , T supra ERNSTEIN Yet perhaps it is not an argument; perhaps we need not Yet perhaps it is not an argument; Obergefell v. Hodges, 135 S. Ct. 2584, 2632-35 (2015) (Thomas, J., dissent- See 130 It is axiomatic that the spirit of the law should instruct the letter It is axiomatic that the spirit of the looks backward, as the It has been stated that the “Declaration These matters, involving the most intimate and personal involving the most intimate and These matters, central to may make in a lifetime, choices choices a person liberty pro- and autonomy, are central to the personal dignity At the heart of liberty tected by the Fourteenth Amendment. of existence, of mean- is the right to define one’s own concept of human life. Beliefs ing, of the universe, and of the mystery the attributes of per- about these matters could not define compulsion of the State. sonhood were they formed under 126. 367 U.S. 497 (1961) 127. Poe v. Ullman, 367 U.S. 497, 523 (Harlan, J., dissenting). 128. 505 U.S. 833 (1992). 129. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992). 130. R.B. B 125. adopt a broader view of a liberty interest than did Justices Thomas, view of a liberty interest than did adopt a broader Scalia, and Alito Harlan noted this truth: “The full scope of the liberty guaranteed by truth: “The full scope of the liberty Harlan noted this by the precise Clause cannot be found in or limited the Due Process is not a series of guarantees . . . . This ‘liberty’ terms of the specific . but a rational continuum . . . .” isolated points . . perhaps described it best in perhaps described ing) (for Justice Thomas’s view on liberty); McDonald v. City of Chicago, 561 U.S. 742, 554 768-69 (2010) (for Justice Scalia’s view on liberty); District of Columbia v. Heller, U.S. 570, 598 (2008) (for Justice Alito’s view on liberty). choose sides. Our mutual inheritance from England and France has defined and enriched our history. Perhaps English influence limited from coming to America; per- the excesses of the French revolution liberty allows the English Common haps the expansive French view of Law to find its best voice.liberty interest of the Magna Though the Carta may have been the original intent, the liberty of the of the law. The import of considering the Constitution in tandem with as Abraham Lincoln would have us the Declaration of Independence, do, has never been more important. The French spirit of liberty must instruct the English letter of liberty. The future of Substantive Due Process is at stake. The future of rights, from contraception to abor- sexual activity one wishes, is at tion to engaging in what consensual stake. with Britain, and forward, as a last word in the American argument American experiments in govern- statement of the principles of ment.” has and should continue to instruct that original intent. As Ameri- cans, we value the right to define our own meaning of the universe, free from the compulsion of the state, perhaps more than any other 38 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 20 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 24 Side B 12/15/2020 11:16:45 12/15/2020 B 24 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 25 Side A 12/15/2020 11:16:45 39 OUR CONFLICTING LIBERTY HERITAGE LIBERTY OUR CONFLICTING M K aspect of our citizenship. that the En- Perhaps this is the true legacy; French Enlight- as instructed by the spirit of the glish Common Law enment created America. proud We owe our thanks to both of these countries.to be worthy of it. May we continue 2020] \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 21 9-DEC-20 15:36 C Y 42655-cre_54-1 Sheet No. 25 Side A 12/15/2020 11:16:45 12/15/2020 A 25 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 25 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 CREIGHTON LAW REVIEW 40 \\jciprod01\productn\C\CRE\54-1\CRE102.txt unknown Seq: 22 9-DEC-20 15:36 42655-cre_54-1 Sheet No. 25 Side B 12/15/2020 11:16:45 12/15/2020 B 25 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 26 Side A 12/15/2020 11:16:45 R R R R R R R R R R R 41 ...... 55 ...... 54 ...... 49 ...... 66 ...... 58 ROAD ET B ...... 63 S N † REEMPTION NTERNET ROVISION ...... 45 I FCC’ ) P P ROWN REEMPTION P B. B NTERNET AND I TATUTORY READTH OF GENCY ...... 76 REEMPTION B A (S P ...... 41 ET ONATHAN ...... 46 ...... 85 J N EGULATION OF THE R XPRESS for their outstanding work to make this article the best that it ASICS OF THE E S B CASTING A BROAD NET: CASTING A EUTRALITY ARROWING THE ONGRESSIONAL DMINISTRATIVE HE EDERAL REEMPTION N P A. T B. F A. C B. A A. FCC’ B. N OF STATE NET NEUTRALITY LAW THE FEDERAL COMMUNICATION THE FEDERAL As a comparatively modern innovation, the internet has become As a comparatively modern innovation, I. INTRODUCTION † Jonathan Brown, J.D., University of Missouri-Kansas City School of Law. V. CONCLUSION II. THE INTERNET REGULATING BROADBAND INTERNET REGULATION BROADBAND IV. A BROAD NET: FCC’S PREEMPTION CASTING III. PREEMPTION OF STATE LAW FEDERAL COMMISSION’S PREEMPTION OF STATE PREEMPTION COMMISSION’S M K can be; all errors and omissions are my own. Jonathan currently serves as a judicial law clerk to the Honorable Alok Ahuja, Missouri Court of Appeals, Western District. The views presented in this article are solely those of the author and do not necessarily reflect the views of Judge Ahuja or the Missouri Court of Appeals. Particular thanks to Professor Irma Russell, University of Missouri- Kansas City School of Law, for sharing her expertise and passion for all things adminis- trative law; for her mentorship; and for the invaluable advice, suggestions, and com- ments as I undertook writing this article. I am indebted to the editors and staff of the Creighton Law Review I. INTRODUCTION professional lives.fundamental in our personal and With increasing new innovations in internet-based frequency we are introduced to lives easier socially, politically, and technologies that seek to make our our news, transact business, economically; changing how we consume connections and interactions, relax engage in communication, social with entertainment, and even how we shop for our weekly groceries. As just one measure for the total pervasiveness of the internet today, digital ad spending in the United States is expected to finally overtake traditional ad spending (print, television, and radio, combined) in the \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 1 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 26 Side A 12/15/2020 11:16:45 12/15/2020 A 26 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 26 Side B 12/15/2020 11:16:45 M K C Y See (Feb. ABLE AND [Vol. 54 C IG ARKETER M : B E 1 , ONOPOLY M ROFILES OF , P Cable is the Main Form of Broadband Access in ITCHELL M (Nov. 2018), https://blog.telegeography.com/cable-is- CREIGHTON LAW REVIEW EOGRAPHY HRISTOPHER G (Aug. 16, 2016), https://arstechnica.com/information-technology/ ELE & C , T Cable Expands Broadband Domination as AT&T and Verizon Lose Cus- ECHNICA And, importantly, the ISPs themselves provide the critical the ISPs themselves provide the And, importantly, T 2 ROSTLE RS , 27 (2018), https://ilsr.org/monopoly-networks/. In a similar vein, another re- US Digital Ad Spending Will Surpass Traditional in 2019 US Digital Ad Spending Will Surpass Traditional T , A As a small number of ISPs dominate the increasingly salient in- As a small number of ISPs dominate Commission (“FCC”), for In 2015, the Federal Communications Yet for the vastness of the internet—inYet for the vastness both its role in today’s 2. In 2017, two of the largest ISPs—Comcast and Charter—served as internet 1. ANNAH ELECOM 19, 2019), https://www.emarketer.com/content/us-digital-ad-spending-will-surpass- traditional-in-2019. access service providers for an estimated 122 million people; by comparison, the next four telecommunications companies (AT&T, Verizon, CenturyLink, and Frontier Com- munications) provided internet access services for a combined 80.3 million people. H United States in 2019 with estimated expenditures of $129.34 billion 2019 with estimated expenditures United States in 54.2 percent of all U.S. ad spending. or approximately main-form-of-broadband-access-in-north-america. And this trend only continues. 2016/08/cable-expands-broadband-domination-as-att-and-verizon-lose-customers/. infrastructure and the network connections necessary to link content the network connections necessary infrastructure and users or consumers. providers to the millions of internet and state legislators, execu- ternet access services market, federal United States have begun to take tives, and regulators throughout the notice. role that the internet Part of recognizing and accepting the internet) plays in today’s society (and ISPs as providing access to the is—as are beginning legislators, regulators, stakeholders, and others to do—confronting and to what extent ISPs the issue of whether, how, be regulated. and the internet more broadly should imposed rigorous regulations and the first time of such magnitude, rules on broadband ISPs. In doing so, the federal government had es- that it was necessary to regulate sentially decided as a policy matter the internet to consumers, ulti- how ISPs were ferrying or conveying content producers; a regulatory mately connecting them to internet scheme known as “net neutrality.” In doing so, the FCC at least im- as a public (rather than private) plicitly viewed broadband internet more familiar to common carriers good, subjecting it to the regulations within the modern communica- of television and telephone services cent study found that the three largest broadband internet providers in the United States—Comcast, Charter, and AT&T—make up almost 60% of the broadband internet market just by themselves. Pete Bell, society and in the available content provided by a countless number of available content provided by a countless society and in the Facebook, Amazon, (from big companies like Google, content providers media influenc- bloggers and today’s “social and Netflix, to individual in between)—onlyers,” and everything a relatively few companies, access to the service providers or “ISPs,” provide known as internet internet. North America tomers T Jon Brodkin, 42 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 2 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 26 Side B 12/15/2020 11:16:45 12/15/2020 B 26 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 27 Side A 12/15/2020 11:16:45 , . . 6 R 43 EV EG- EG- O . L . L . R T T S S ASH OF OF . . see also ONF ONF § 3101(a) (Deer- C C In addition, in L L ’ ’ ODE 8 In 2019, twenty- AT AT . C 7 IV , N , N . C AL 5 . tit. 3, § 348(b) (LexisNexis 2018) (pro- NN . A TAT . S T Just three years later, however, the FCC Just three years 3 CASTING A BROAD NET CASTING Net Neutrality Legislation in States Net Neutrality Legislation in States the FCC promulgated an order, the “Restoring Internet the FCC promulgated (Oct. 21, 2019) (emphasizing the Administration’s record of deregula- (Oct. 21, 2019) (emphasizing the Administration’s 4 at 426-28. GOV Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601 (2015). Protecting and Promoting the Open Internet, . ISLATURES ISLATURES . § 276A.418 (2019) (prohibiting public contracts with broadband ISPs that (Jan. 21, 2019), https://www.ncsl.org/research/telecommunications-and-infor- (Jan. 23, 2019), http://www.ncsl.org/research/telecommunications-and-infor See is Benefitting All Americans See President Trump’s Historic Deregulation See id. TAT Despite the agency’s 2018 Order, state legislatures throughout Despite the agency’s 2018 Order, Under this order, rather than regulating broadband internet as a rather than regulating broadband Under this order, § 19.385.020(2) (2018) (prohibiting broadband ISPs from blocking lawful content, 8. Heather Morton, 5. Restoring Internet Freedom, 33 FCC Rcd. 311 (2018). 6. 7. Heather Morton, 4. 3. . S HITEHOUSE ODE EV M K W C R tions technology industry. tions technology ing 2019) (making it unlawful for broadband ISP to engage in anti-net neutrality princi- ples as defined). nine states introduced legislation concerning net neutrality and four nine states introduced legislation net neutrality. states enacted legislation concerning viding certification of ISP only if the provider does not block lawful content, applica- tions, or services, impair or degrade lawful internet traffic based on content, application, or service, or engage in paid prioritization); C drastically altered course.drastically altered focused on Under a new administration deregulation, Freedom Order,” (“2018 Order”) that repealed its prior set of rules and (“2018 Order”) that repealed its prior Freedom Order,” broadband ISPs. regulations concerning tion efforts generally). Largely, the common carrier regulations applied to cable and telephone providers and Largely, the common carrier regulations services. mation-technology/net-neutrality-2019-legislation.aspx. violate net neutrality principles including paid prioritization, blocking lawful content, applications, or services, discriminating against or favoring content, etc.); W mation-technology/net-neutrality-legislation-in-states.aspx#2018Legis; impairing or degrading internet traffic on the basis of content, application, or service, or impairing or degrading internet traffic on the basis of content, application, or service, engaging in paid prioritization); V the country maintained a view of the internet as necessarily a public the country maintained a view of good subject to appropriate regulation. In the 2018 legislative session, adopted resolutions concerning net five states enacted legislation or 120 bills or resolutions on neutrality and thirty-four states introduced net neutrality. the issue of internet regulation and public good to which the federal regulatory scheme for common carri- the federal regulatory scheme public good to which neutrality regula- practical effect, resulting in net ers applies (as a viewed broadband regulatory scheme necessarily tions) the new regulated under a a private good, which is best internet more like approach.more market-based or laissez-faire Most importantly, al- and regulation, the FCC though not uniquely in agency rulemaking by expressly preempting states reinforced its new regulatory scheme rules within their own jurisdic- from imposing any net neutrality-style the previous FCC had made fed- tion (the same style or type of rules the FCC disavowed in 2018). eral policy in its 2015 Order and which 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 3 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 27 Side A 12/15/2020 11:16:45 12/15/2020 A 27 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 27 Side B 12/15/2020 11:16:45 M K , ., C Y NST . I [Vol. 54 SCH . R EG R L ’ AT (Aug. 13, 2018), https:// , N —should be nonetheless OURNAL 11 -J the United States Court of 12 , APITAL C OPEKA , T State Responses to Net Netrality Justice Department Sues California Over Net Neutrality Law CREIGHTON LAW REVIEW 10 Mozilla Corp. v. FCC Dina Kesbeh, See After California passed “one of the strongest net neutrality passed “one of the strongest net After California 9 Recently, in Whether net neutrality regulation—asWhether net neutrality Part briefly described in a broad net of preemption over In its 2018 Order, the FCC cast 9. Kathryn J. Kline, 11. Even industry insiders recognize the modern reality that “[l]ike electricity, 10. 12. 940 F.3d 1 (D.C. Cir. 2019) (per curiam). although both can be valid exercises of the preemption power—arealthough both can be valid exercises NPR (Oct. 1, 2018), https://www.npr.org/2018/10/01/653216821/u-s-justice-department- sues-california-over-net-neutrality-law; Complaint for Declaratory and Injunctive Relief at 9-10, United States v. California, 2018 U.S. Dist. Ct. Pleadings LEXIS 18799 (E.D. Cal. Sept. 30, 2018) (No. 2:18-at-01539). broadband is essential to every American.” Jonathan Spalter & Shirley Bloomfield, https://pubs.naruc.org/pub/45ACE3A2-AAEA-417D-2416-B6862C9D4435. 2018, governors in six states signed executive orders that only permit six states signed executive orders 2018, governors in neutrality princi- ISPs who follow or support net state contracts with ples. www.cjonline.com/opinion/20180813/jonathan-spalter-and-shirley-bloomfield-broad band-should-be-reality-for-all. judiciously wielded, as should any exercise of the preemption power. judiciously wielded, as should any to experience the growth in And in a modern system that continues agencies, more opportunities the role and autonomy of administrative federal actor that tips the scales in will arise for agencies to be the the preemption power.favor of the federal government under At the and preemption by agencies—same time, congressional preemption two entirely different propositions. Appeals for the District of Columbia Circuit recognized this principle laws in the nation,” the Department of Justice promptly filed suit the Department of Justice laws in the nation,” part seeking to in- and injunctive relief, in large seeking declaratory within the under the preemption provision contained validate the law FCC’s 2018 Order. II—is not the focus of this article and appropriate as a policy matter is the field. and other experts in is better left to policymakers Rather, 2018 Order with its express pre- this article explores how the FCC’s context of well-established adminis- emption provision fits within the and what it reveals about the trative law and preemption principles particularly given the now state of the delicate balance of federalism, as to whether broadband internet developing federal-state divide private good. should be regulated as a public or a heavy weight on the federal- state regulation of the internet, placing of the federal government.state regulatory balance in favor While mutually exclusive or contradic- federalism and preemption are not state regulation of the in- tory, the ability to displace independent ternet—a technology and industry in which the communications interest States have a vested and important Broadband Should be Reality for All 44 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 4 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 27 Side B 12/15/2020 11:16:45 12/15/2020 B 27 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 28 Side A 12/15/2020 11:16:45 D- 45 A N ’ , and SS Broad- A L ’ 18 AT Perhaps its Verizon v. FCC, 14 . (June 12, 2019), TR , 31 J. N Mozilla Corp. . C see also SCH R These packets are trans- 17 EW 13 , P In one sense, ISPs provide con- 16 CASTING A BROAD NET CASTING Net Neutrality: Preparing for the Future . 1029, 1034 (2012). Net Neutrality and Nondiscrimination Norms in Telecommuni- EV Today, this connection is facilitated by a number of Today, this connection is facilitated note 13, at 673. 47 U.S.C. § 230(f)(1) (2019) (defining the internet as “the interna- Internet/Broadband Fact Sheet 15 , . L. R supra RIZ see also . 669, 673 (2011). at 1033 (quoting Julius Genachowski, Conversations with FCC Chairman ; MIN UD Id. See, e.g. Id. , 54 A To fully understand the implications and importance of potential To fully understand the implications Today, internet consumers primarily rely on the technology of Today, internet consumers primarily . L. J 17. 16. Daniel Lyons, 15. Wong, 18. 14. 13. Jennifer Wong, M K when it invalidated the FCC’s exercise of the preemption power in its the FCC’s exercise of the preemption when it invalidated 2018 Order. of federal Part III outlines the principles In this vein, law by adminis- law and also preemption of state preemption of state trative agencies. in this con- analyzes the FCC’s 2018 Order Part IV D.C. Circuit Court’s opinion in text, as well as the concludes that the FCC’s exercise of administrative preemption au- FCC’s exercise of administrative concludes that the the seemingly un- raises important questions as to thority in this case FCC assert in the administrative agencies like the constrained power and governmental framework. modern regulatory II. REGULATING THE INTERNET it is important to have a basic federal preemption of state law here, the underlying principles of in- understanding of the internet and to as “net neutrality.”ternet regulation colloquially referred As a rela- know as the “internet” is, in the tively modern technology, what we “network”) of computers that are most basic sense, a connection (or and simultaneously send, release, linked together to instantaneously and request “data packets” of information. band internet is generally described as “high-speed internet access band internet is generally described most important and easily palpable process, the internet operates to most important and easily palpable to the end-of-the-line consumer: connect a myriad of content providers internet users. 740 F.3d 623, 629 (D.C. Cir. 2014) (recognizing, “[t]oday, [internet] access is generally http://www.pewinternet.org/fact-sheet/internet-broadband/ (almost three-fourths of http://www.pewinternet.org/fact-sheet/internet-broadband/ (almost three-fourths American adults have high-speed broadband service at home); mitted through the network and ultimately re-configured in the form mitted through the network and on a user’s computer. of a webpage, document, or video sumers with the “on-ramp” to the internet. sumers with the “on-ramp” to the privately-owned ISPs that provide the final link in the internet chain privately-owned ISPs that provide from the network (the “in- that directs the packets of information ternet”) to the consumer’s computer. tional computer network for both Federal and non-Federal interoperable packet switched data networks”). Julius Genachowski: Thoughts on the October Commission Meeting & the Open In- Julius Genachowski: Thoughts on the October Commission Meeting & the Open ternet NPRM (Oct. 22, 2009)). “broadband internet” as that on-ramp to access the internet. “broadband internet” as that on-ramp cations 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 5 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 28 Side A 12/15/2020 11:16:45 12/15/2020 A 28 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 28 Side B 12/15/2020 11:16:45 M K . C Y 19 . L. COM- OY , As a Typi- [Vol. 54 ELECOMM 25 21 As a conse- , 2 J. T 23 (last updated June 23, N ’ OMM EUTRALITY . C N note 19. in a number ways: copper in a number ways: ET 20 It is competitive and open in OMM N U.S. Telecom. Ass’n v. FCC, 63 L 22 supra . C , ED , F Shaping the Future of the Internet: Regulating the NTERNET AND I CREIGHTON LAW REVIEW Internet and Broadband Terms and Speeds Explained note 16, at 1035. Network Neutrality, Broadband Discrimination 24 supra , 521 U.S. at 853 (citation omitted) (quotation omitted). . L. 141, 146 (2003); Reno v. Am. Civil Liberties Union, 521 U.S. 844, 853 ASICS OF THE Kristina M. Lagasse, Types of Broadband Connections Tim Wu, Sam Cook, ; PARITECH B ECH (Mar. 14, 2018), https://www.comparitech.com/internet-providers/internet- Id. See Reno See Types of Broadband Connections See T HE But however objective the internet may be in its basic or classical But however objective the internet As a function of a traditional “end-to-end” design that transmits As a function of a traditional “end-to-end” IGH . 321, 327 (2017) (discussing how, initially, Comcast and Time Warner repurposed 20. 22. 24. 23. Lyons, 25. 21. 19. EV & H R cally, consumers pay ISPs a monthly fee for the privilege of using the pay ISPs a monthly fee for the privilege cally, consumers of these methods. access service through one ISPs’ broadband connect first- for internet access, ISPs alone Whatever the method to last-level internet consumers. level content producers A. T that is always on and faster than the traditional dial-up access.” and faster than the traditional that is always on quence of this traditional non-discriminatory model of the internet, as quence of this traditional non-discriminatory has observed, “[n]o single organiza- the United States Supreme Court [internet], nor is there any single tion controls any membership in the [internet] sites or services can centralized point from which individual be blocked[.]” 2014), https://www.fcc.gov/general/types-broadband-connections. telephone lines (known as digital subscriber lines or DSL), satellite, as digital subscriber lines telephone lines (known services. and fiber optic cables, and mobile traditional cables the sense that the internet operates through a chain of “best efforts the sense that the internet operates networks”—wherein the network delivers the digital packets of infor- how to transmit the packet to its mation based on a “best guess” of any function of the packet’s actual intended location rather than as differentiate between data content; the internet does not operationally within them. packets based on the content contained (1997) (“From the publishers’ [or content provider’s] point of view, [the internet] consti- of tutes a vast platform from which to address and hear from a worldwide audience millions of readers, viewers, researchers, and buyers.”). and-broadband-terms-explained/. functionality and design, the physical infrastructure necessary to ac- functionality and design, the physical cess the network—telephone and mobile infra- lines, cables, satellites, structure—is and maintained by the ISPs themselves. built data or information packets over the network without regard to their data or information packets over and open platform for con- content, the internet provides a competitive tent providers to reach internet users. World’s Most Powerful Information Resources in furnished through ‘broadband,’ i.e., high-speed communications technologies, such as furnished through ‘broadband,’ i.e., high-speed cable modem service,” and no longer dial-up connections through phone lines). 46 internet service ISPs provide broadband \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 6 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 28 Side B 12/15/2020 11:16:45 12/15/2020 B 28 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 29 Side A 12/15/2020 11:16:45 . T 47 Ly- As . S see 27 ICH note 11 supra , 2015 M This is espe- 28 In other words, pro- the content delivery 30 and Network Nepotism and the Market for Content Deliv- 27, 27 (2014). This incentive to view data un-objectively is This incentive CASTING A BROAD NET CASTING What’s New in the Network Neutrality Debate note 26, at 745 (characterizing the debate as addressing 26 NLINE note 16, at 1034. . O supra EV supra Tejas N. Narechania, Rob Frieden, . L. R at 764-65. note 16, at 1038 (net neutrality is about ISP ability to regulate and make 29 TAN See See Id. . 739, 748-49 (2015) (recognizing that in its early development, due to plentiful The ambiguous set of regulatory principles collectively known as The ambiguous set of regulatory supra EV 26. 30. Frieden, 29. 28. Lyons, 27. , 67 S M K L. R function of their existence as private entities and because the ISPs existence as private entities and function of their to provide the ser- first invest in this infrastructure must themselves such as profit in- subjected to outside forces vice, ISPs are necessarily towards (or turn, creating inherent preferences centivization; in packets of information—moreagainst) certain content broadly, the providers and the the network between the content transmitted across internet consumer. the flow of information in a result, ISPs are primed to “manipulate terms upon which content provid- society” simply “[b]y regulating the reach consumers.” ers use their [ISPs’] networks to ons, (stating that in the last twenty years, ISPs “have invested more than $1.6 trillion . . . (stating that in the last twenty years, ISPs infrastructure”). building out our nation’s world-leading digital cially true for today’s ISPs that simultaneously exist and continue to cially true for today’s ISPs that simultaneously of content expand and compete both in terms market. ponents of net neutrality argue that regulation is required to reduce ponents of net neutrality argue that with the modern reality that ISPs the perverse incentives that come even stronger given the practical and economic reality that consumers the practical and economic reality even stronger given access to the in- a single ISP to provide their entire typically choose first place. a small handful of ISPs exist in the ternet where only “whether and how ISPs have the incentive and ability to provide preferential access to “whether and how ISPs have the incentive and ability to provide preferential access some content sources while handicapping others by providing inferior service, demand- ing unaffordable surcharges, or blocking specific types and sources of traffic”); rules for the “flow of information from Internet-based content and application providers to consumers,” rather than the rates an ISP can charge the end consumer for broadband internet access). government grants and subsidies, ISPs had no incentive to “favor certain types and government grants and subsidies, ISPs had no incentive to “favor certain types sources of [network] traffic,” but the commercialization of the internet where ISPs bear the financial burden of network infrastructure, ISPs are incentivized to “seek higher compensation from both downstream and upstream users”). “net neutrality” recognize this as a systemic flaw of the internet: the “net neutrality” recognize this as role ISPs can play inherently profit incentives and gate-keeper-style true nature of the internet.conflict with the classical design and Net and uphold a truly neutral neutrality proponents seek to safeguard ISPs from discriminating against end-to-end network by prohibiting by selectively slowing down or packets of information (that is, content) and from engaging in other blocking their transmission altogether practices. non-objective or non-neutral network ery their cable lines to provide high-speed internet); Spalter & Bloomfield, their cable lines to provide high-speed internet); 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 7 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 29 Side A 12/15/2020 11:16:45 12/15/2020 A 29 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 29 Side B 12/15/2020 11:16:45 M K T- C Y 34 A Net HE 31 At the , T [Vol. 54 SSOCIATED 35 , A 32 37 note 16, at 1034. Comcast Corp. v. FCC, 600 F.3d supra see also Lyons, see or blocking, has the potential to dis- or blocking, has the potential to 36 Comcast Blocks Some Internet Traffic note 29, at 29; note 26, at 751. note 16, at 1034 (recognizing that “the largest broadband note 16, at 1034 (recognizing that “the CREIGHTON LAW REVIEW Additionally, net neutrality regulations are also Additionally, net neutrality regulations supra note 16, at 1053. supra 33 supra Peter Svensson, Net Neutrality: A Guide to (and History of) a Contested Idea supra at 1056 (defining throttling as “the intentional delaying of targeted net- Lyons, Frieden, LANTIC See id. See See See, e.g., (Apr. 25, 2014), https://www.theatlantic.com/technology/archive/2014/04/the- (Oct. 19, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007 /10/ Proponents of net neutrality as a policy matter seek regulation of neutrality as a policy matter seek Proponents of net 34. 35. Lyons, 33. Narechania, 32. 36. 37. & Ad- For a brief discussion net neutrality generally, see Alexis C. Madrigal 31. RESS neutrality supporters believe that the profit-incentives for ISPs (even believe that the profit-incentives neutrality supporters companies bear of the modern reality that such if merely a function can easily and improving network infrastructure) the cost of building of traffic delivery, surcharges and prioritization lead to “pay to play” classical end-to-end framework. threatening the internet’s most fundamental level, net neutrality proponents argue that content most fundamental level, net neutrality by ISPs in whatever form, whether or content provider discrimination paid prioritization, throttling, are privately-owned profit-seeking businesses providing a service profit-seeking businesses providing are privately-owned society. an integral necessity within today’s which has become 642, 644 (D.C. Cir. 2010) (“In 2007 several subscribers to Comcast’s high-speed Internet service discovered that the company was interfering with their use of peer-to-peer networking applications.”). rupt and, at a minimum, to undermine the open, nondiscriminatory rupt and, at a minimum, to undermine design and function. nature of the internet in its classical providers are cable and telephone companies, which have incentives to prevent custom- providers are cable and telephone companies, in ways that threaten their revenue ers from using their broadband connections streams”). aimed to protect against ISPs blocking certain traffic altogether, aimed to protect against ISPs blocking work traffic”). rienne Lafrance, best-writing-on-net-neutrality/361237/?gclid=CJwKCAjwq_D7BRADEiwAVMDdHi-OF nqh0_VoaRYi_sWtEmfvRZgTsW_SH8Ae3iEqdFcTTeq460CbyxoCf34QAvD_BwE. 19/AR2007101900842.html (reporting Comcast Corp. blocked online peer-to-peer net- work sharing through services like BitTorrent); ISPs and the internet in a way that protects against “paid prioritiza- in a way that protects against ISPs and the internet or higher cost for charging content providers a fee tion” practices (i.e., the network’s limited shared re- priority in the ISP’s allocation of neutral and detached best efforts sources) rather than relying on the network system. P closing off their network based on specific content or a specific content closing off their network based on or class of content providers provider, or requiring a content provider from the ISP’s network. to pay a fee to avoid being blocked 48 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 8 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 29 Side B 12/15/2020 11:16:45 12/15/2020 B 29 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 30 Side A 12/15/2020 11:16:45 45 49 —is 43 for which Until 1996, 44 40 The classifica- 47 U.S.C. § 153(24), 42 see as amended by the as amended by 38 deference applies deference to the FCC’s “interpreta- Congress created the Federal Congress created Chevron NTERNET 39 Chevron I CASTING A BROAD NET CASTING S. Rep. No. 104-230, at 114-15 (1996) (Conf. Rep.) (noting that the EGULATION OF THE , 545 U.S. at 981 (applying R see also 47 U.S.C. § 153(51) (explaining telecommunications carriers means “any In 1996, the Telecommunications Act, in part, amended the Act, in part, amended In 1996, the Telecommunications Brand X See 41 EDERAL Through the Communications Act of 1934, Through the Communications 44. 43. 45. 47 U.S.C. § 153(51); 47 U.S.C. §§ 201-231 (2018). 38. (1934) (codified at 47 U.S.C. §§ Pub. L. No. 73-416, 48 Stat. 1064 153-614 39. 56 (1996) (codified at 47 U.S.C. §§ Pub. L. No. 104-104, 110 Stat. 151, et seq. 40. 47 U.S.C. §41. 151 (2018). ch. 652, sec. 3(h) (1934) (codified at 47 U.S.C. Communications Act of 1934, 42. Pub. L. 104-104, sec. 3(a)(2)(41), (51), 110 Telecommunications Act of 1996, M K B. F especially important in terms of the potential regulation to which it is especially important in terms of the as each classification brings with subject under the statutory scheme it a very different regulatory framework. For instance, when classi- ISPs providing broadband in- fied as a telecommunications service, common carriers, ternet access services are considered federal telecommunications law imposes a mandatory and onerous federal telecommunications law of the Telecommunications Act. regulatory scheme under Title II the Communications Act principally regulated entities that were clas- Act principally regulated entities the Communications engaged as a carriers”; those defined as “any person sified as “common by wire or hire, in interstate . . . communication common carrier for radio.” tion assigned to broadband internet—itself an exercise of agency ex- pertise and authority to which (53) (2018); Telecommunications Act of 1996, Telecommunications tion of the Communications Act” in the agency’s classification of broadband cable in- tion of the Communications Act” in the agency’s classification of broadband cable ternet service). Communications Commission (“FCC”) to “regulat[e] interstate and Commission (“FCC”) to “regulat[e] Communications in communication by wire and radio.” foreign commerce new definition of “information service” is defined “similar to the [FCC]’s definition of new definition of “information service” is defined “similar to the [FCC]’s definition “enhanced services” and that, “[t]he Senate intends that the Commission would have ser- the continued flexibility to modify its definition and rules pertaining to enhanced vices as technology changes”). provider of telecommunications services” and “shall be treated as a common carrier”); Telecommunications Act of 1996, § 101(b), 110 Stat. 56 (amending Title II of the Com- munications Act by inserting before 47 U.S.C. § 201 the title: “Part I—Common Carrier Regulation”). Communications Act by creating two new categories or classifications Act by creating two new categories Communications FCC’s domain: telecommunications of regulated entities under the service providers. service providers and information (2018)). 2018)). § 153(11) (2018)). §Stat. 56, 58-60 (1996) (codified at 47 U.S.C. 153(41), (51) (2018)). enacted Congress long-standing practice of distinguishing this modern distinction grounded in the FCC’s a between “basic” services (e.g., a single-telephone line) and “enhanced” services (e.g., “computer-processing service offered over telephone lines”). Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 975-76 (2005); On the other hand, if classified as an information service, these ISPs On the other hand, if classified as 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 9 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 30 Side A 12/15/2020 11:16:45 12/15/2020 A 30 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 30 Side B 12/15/2020 11:16:45 M K , C Y 49 Cable [Vol. 54 46 51 More plainly, a Title When applied under 50 47 Framework for Broadband Internet Ser- see also U.S. Telecomm. Ass’n v. FCC, 825 F.3d 674, 701- Internet Policy Statement, 20 FCC Rcd. 14986, at Internet Policy Statement, 20 FCC Rcd. see also see also , 545 U.S. at 978 (indicating Title I classification means that , 545 U.S. at 978 (indicating Title I classification CREIGHTON LAW REVIEW note 16, at 1041; Brand X . 1045, 1051-54 (1983) (recognizing that Title II gives the FCC “express supra EV Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601, at 5607-08 Protecting and Promoting the Open Internet, See . L. R and the mandatory common carrier regulations under Title II. and the mandatory common carrier Alternatively, if the FCC classifies broadband internet service as Alternatively, if the FCC classifies Accordingly, whether the FCC classifies broadband internet as a the FCC classifies broadband Accordingly, whether AND 48 51. Lyons, 47. 48. Pub. L. No. 104-104, §49. 706, 110 Stat. 153 (1996) (codified at 47 U.S.C. § 1302). 47 Protecting and Promoting the Open Internet, 30 FCC Rcd. at 5720-25; 50. 47 U.S.C. §§ 153(51) (telecommunications carrier treated as common carrier), 46. 47 U.S.C. § 151; 36 V would instead be wholly outside the mandatory Title II common car- wholly outside the mandatory Title would instead be and would fall under Title I—arier regulations but by less-defined, and more limited regulatory scheme. definition a lighter II telecommunications service classification brings ISPs and the in- II telecommunications service classification “direct authority.” ternet industry within the FCC’s this scenario, the net neutrality-style rules are squarely “grounded in this scenario, the net neutrality-style §. . . statutory authority”; that is, 706 of the Telecommunications Act vice, 25 FCC Rcd. 7886, at 7889 (2010) (“Title II of the Communications Act provides the vice, 25 FCC Rcd. 7886, at 7889 (2010) (“Title II of the Communications Act provides Commission express authority to implement, for telecommunications services, [common carrier] rules furthering universal service, privacy, access for persons with disabilities, and basic consumer protection, among other federal policies.”); Frank W. Lloyd, 11 (D.C. Cir. 2016) (upholding the FCC’s re-classification of broadband internet access service as a telecommunications service in an order that imposed rules against blocking, throttling, and paid prioritization). 14987-88 (2005); such services and service providers are “not subject to mandatory Title II common-car- such services and service providers are “not rier regulation”). authority” and “comprehensive authority” over common carriers); 47 U.S.C. §§ 201-231. (2015). U.S.C. §§ 201-276 (2018). 160(a) (forbearance authority); an information service, the agency’s regulatory authority and jurisdic- an information service, the agency’s tional framework are much different. Most importantly, ISPs are no defined (and mandatory) common longer subject to any of the clearly II.carrier regulations found under Title In fact, the FCC would have telecommunications or information service under the Telecommunica- or information service under the telecommunications in turn, determines of agency authority that, tions Act is an exercise of regulations the extent, and type or style the statutory authority, services. on the ISPs who provide those agency can impose If the classification, it a Title II telecommunications agency promulgates that practically common-carrier-style rules; rules must impose the scheme, including rules against speaking constitute a net neutrality in addition to enhanced blocking, throttling, and paid prioritization, transparency and disclosure requirements. Television’s Emerging Two-Way Services: A Dilemma for Federal and State Regulators While the common carrier regulations under Title II are mandatory, While the common carrier regulations agency decision-making authority Congress expressly delegates to the regulations. to forbear from imposing certain 50 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 10 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 30 Side B 12/15/2020 11:16:45 12/15/2020 B 30 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 31 Side A 12/15/2020 11:16:45 57 51 , 466 U.S. 463, 468 (1984) . authorizing the FCC to Instead, its authority to Instead, its authority 55 has formulated a two-part 52 58 Based on Supreme Court case law, Christopher Terry, Scott Memmel, & Ashley 54 . L.J. 1, 28 (2019). 56 NT . & E FCC v. ITT World Comms., Inc see also CASTING A BROAD NET CASTING OMM See C United States v. Southwestern Cable Co., 392 U.S. 157 (1968); , 545 U.S. at 976. ASTINGS More clearly, “to assert ancillary jurisdiction, the FCC More clearly, “to assert ancillary Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. 2014) (determining the FCC Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. Indeed, the Supreme Court of the United States has recog- Court of the United States Indeed, the Supreme Lost in a Novelty Mug: U.S. Telecom, the FCC, and Policy Resolution for Net 59 , 41 H , 545 U.S. at 976). See generally See Brand X 53 Rather than relying on an express statutory authority, FCC’s ju- Rather than relying on an express 59. Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir. 2010) (citing Am. Library 57. 58. cases Under the Hobbs Act, the courts of appeals have exclusive jurisdiction in 55. Pub. L. No. 73-416, § 4(i), 48 Stat. 1064 (1934) (codified at 47 U.S.C. §§ 154(i) 56. 47 U.S.C. § 154(i); 53. Internet Policy Statement, 20 FCC Rcd. 14986, at 14987-88 (2005) (quoting 54. 52. M K no regulatory authority to impose any common carrier-style rules (in- to impose any common carrier-style no regulatory authority rules) on ISPs. cluding net neutrality-style (citing 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a)). Ass’n v. FCC, 406 F.3d 689, 691-92 (D.C. Cir. 2005)). “perform any and all acts, make such rules and regulations, and issue “perform any and all acts, make such this chapter, as may be necessary in such orders not inconsistent with the execution of its functions.” regulate ISPs when broadband internet is classified under the Tele- broadband internet is classified regulate ISPs when agency’s “Title I Act as an information service is the communications communica- to regulate interstate and foreign ancillary jurisdiction tions.” test for the exercise of so-called ancillary jurisdiction pursuant to Title test for the exercise of so-called ancillary by the “general jurisdictional I: (1) the regulated subject is covered of an interstate communication by grant under Title I” (i.e., it consists are “reasonably ancillary to wire), and (2) the regulations promulgated of its statutorily mandated responsi- the [FCC]’s effective performance bilities.” Turachek, United States v. Midwest Video Corp., 406 U.S. 649 (1972); FCC v. Midwest Video Corp., 440 U.S. 689 (1979). challenging FCC’s orders. (2018)). must establish a statutory mandate to which its proposed action is must establish a statutory mandate could not regulate broadband providers as common carriers—specificallycould not regulate broadband providers as anti-discrimi- nation obligation and anti-blocking rules—under authority of § 706 of Telecommunica- of broadband internet was as an tions Act when the still-binding classification service”). “information service” rather than “telecommunications nized that “[i]nformation-service providers, by contrast, are not providers, by nized that “[i]nformation-service under Title II, common-carrier regulation subject to mandatory regulatory obli- has jurisdiction to impose additional though the [FCC] regulate interstate Title I ancillary jurisdiction to gations under its and foreign communications[.]” risdiction to regulate information service providers under its ancillary risdiction to regulate information in the broad grant of agency author- authority is statutorily grounded ity under § 4(i) of the Communications Act, Neutrality Brand X the Court of Appeals for the D.C. Circuit the Court of Appeals for the D.C. 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 11 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 31 Side A 12/15/2020 11:16:45 12/15/2020 A 31 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 31 Side B 12/15/2020 11:16:45 M K C Y In In 61 , 600 63 65 [Vol. 54 a Title II not Comcast Corp. Comcast Corp. v. In 62 The Court of Appeals recog- 64 . 1627, 1636-37 (2011). EV FCC Regulation versus Antitrust: How Net Neutrality Is Thus, to properly exercise ancillary authority Thus, to properly CREIGHTON LAW REVIEW , 52 B.C. L. R 60 ., 600 F.3d at 644-45. at 651-55 (determining the FCC could not rely on policy statements at 651 (quoting 47 U.S.C. § 230(b)(1), (3)). Comcast Corp Id. See id. , despite FCC’s classification of cable internet as , despite FCC’s classification of cable But as noted above, to properly exercise ancillary jurisdiction But as noted above, to properly In a 2010 decision, the D.C. Circuit Court further delineated the the D.C. Circuit Court further In a 2010 decision, 63. 61. Second Computer Inquiry, 77 F.C.C.2d 384, ¶ 126 (1980). 62. clas- As an initial note, while the FCC order that precipitated this case did not 64. 65. 60. Babette E.L. Boliek, effect, the FCC attempted in its Comcast Order to impose regulations effect, the FCC attempted in its Comcast realm of its jurisdiction while sounding in the Title II common-carrier II classification to cable internet employing a different, non-Title service. any regulation imposed under its under Title I, the FCC must ground obligation (such that FCC’s reg- ancillary authority in some statutory obligation or mandate).ulation is “ancillary” to that statutory In the agency relied on 47 U.S.C. promulgating its Comcast Order, § practices frus- 230(b), arguing that Comcast’s network management “to promote the continued develop- trated stated congressional policy computer services” and “to ment of the internet and other interactive which maximize user con- encourage the development of technologies trol over what information is received.” F.3d at 645. securely tethered.” telecommunications service, it issued an order asserting jurisdiction telecommunications service, it issued practices and requiring the ISP over Comcast’s network management network applications and to stop discriminating against peer-to-peer its network (“Comcast Order”). to adopt a new system to manage nized, however, that by the very nature of ancillary—rathernized, however, that by the very than direct—authority, the FCC cannot provide the necessary statutory link simply by relying on congressional statements of policy. sify cable internet as an information service, the FCC nevertheless relied only on § 4(i) of the Communications Act (its Title I ancillary authority) where a then-binding 2002 ser- FCC order had classified cable internet services as “neither ‘a telecommunications vice’ covered by Title II . . . nor a ‘cable service’ covered by Title IV.” under Title I, the FCC must tie the regulation to some duty or respon- FCC must tie the regulation to some under Title I, the assigned or delegated by Congress.sibility specifically 1980, when In services—an its authority to regulate enhanced initially outlining or- precursor to and model for the Telecommunications der that was the services” classification—theAct’s “information that FCC recognized that the “regulation on its Title I authority is the “principle limitation” purpose.” at protecting or promoting a statutory must be directed contained within 47 U.S.C. § 230(b) and § authority or jurisdic- 151 to justify ancillary importance in the distinction between internet service as a telecom- distinction between internet service importance in the service. munications service or information FCC Defining the Boundaries 52 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 12 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 31 Side B 12/15/2020 11:16:45 12/15/2020 B 31 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 32 Side A 12/15/2020 11:16:45 53 Second, 70 , 406 F.3d at 692) note 56, at 9. at 5722. . supra Am. Library Ass’n note 56, at 9. In doing so, the FCC princi- Terry et al., , then, while the circuit court , then, while the 68 see supra (upholding the FCC’s prior inter- 69 Comcast As a function of this re-classification, the As a function of this re-classification, Terry et al., In 72 66 CASTING A BROAD NET CASTING see also Verizon v. FCC , 600 F.3d at 655, 661 (citing 71 67 Restoring Internet Freedom, 33 FCC Rcd. 311, at 320 (2018). Protecting and Promoting the Open Internet, 30 FCC Rcd. at 5743-44 n.865 at 5724 (citing 47 U.S.C. §§ 201, 202, 208 and “related enforcement at 655, 659; See Id. See Id. Comcast Corp. In 2018, however, the FCC reversed course again to re-classify In 2018, however, the FCC reversed Prior to its 2015 Order, the FCC classified broadband internet ac- Prior to its 2015 Order, the FCC classified 68. 71. 67. 69. 740 F.3d 623 (D.C. Cir. 2014). 70. Protecting and Promoting the Open Internet, 30 FCC Rcd 72. 66. M K other words, the court at least implicitly confirmed that, at the core, court at least implicitly confirmed other words, the be tied to some ex- of its ancillary authority must the FCC’s exercise responsibil- of regulatory authority or other statutory press delegation ity.had not the FCC’s order finding it The appeals court vacated it relied only on its Title I ancillary authority where properly exercised those policy state- statements and failed to tie congressional policy delegation[ments to any “express rejecting ] of regulatory authority,” to pursue stand- “to use its ancillary authority the agency’s attempt of a specifi- rather than to support its exercise alone policy objective, cally delegated power.” in light of its administrative determination that broadband internet in light of its administrative determination as a telecommunications service, access service should be classified to implement net neutrality rules the FCC found statutory authority under Title II. (vacating FCC’s order because FCC “failed to tie its assertion of ancillary authority . . . (vacating FCC’s order because FCC “failed to tie its assertion of ancillary authority to any ‘statutorily mandated responsibility’”); pally relied on its interpretation of §pally relied on its interpretation 706 of the Telecommunications Act and Title II. First, in accordance with the D.C. Circuit Court’s earlier decision in found that cable internet clearly falls within the scope of potential found that cable internet clearly service, FCC could not rely only on FCC regulation as a non-Title II forth federal policies and pur- congressional policy statements setting to properly exercise its ancillary poses regarding the internet, jurisdiction. pretation of § 706(a) as an affirmative grant of authority), the FCC expressly interpreted § 706 as its “affirmative authority.” agency expressly eliminated the “conduct rules” of the prior order, in- agency expressly eliminated the “conduct (citing FCC’s prior decisions classifying broadband internet access service as informa- tion services and re-classifying broadband internet access service as a “telecommunica- tions service subject to our regulatory authority under Title II of the Communications Act”). authorities”). broadband internet access service as an information service under the broadband internet access service Telecommunications Act. cess service as an information service. tion because they are not delegations of regulatory authority and FCC “cites neither . . . tion because they are not delegations of regulatory authority and FCC “cites neither or to shed light on any express statutory delegation of authority found in Title II, III, VI, for that matter, anywhere else”). 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 13 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 32 Side A 12/15/2020 11:16:45 12/15/2020 A 32 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 32 Side B 12/15/2020 11:16:45 M K C Y 75 In ra- [Vol. 54 reinter- 73 74 grants of regulatory authority that grants of regulatory not Administrative Preemption: An Experiment In Regu- . 1429, 1432 (1984) (“The Framers of the Constitution EV Consistent with the Title I ancillary jurisdic- Consistent with the Title I ancillary are the principles of federalism that guide our are the principles of federalism that 79 76 CREIGHTON LAW REVIEW . L. R A The Supremacy Clause provides: , 70 V , imposing a reporting requirement on the FCC, as a , imposing a reporting requirement 80 78 77 at 450. at 470. at 437-44 (noting that the new rule requires ISPs to disclose, among others, Susan Bartlett Foote, See Id. Id. Id. Id. Notwithstanding the removal of net neutrality rules on broad- the removal of net neutrality rules Notwithstanding As the Supreme Court has consistently recognized, “central to the As the Supreme Court has consistently 74. 76. 77. Pub. L. 104-104, § 101(a), 110 Stat. 56, 152 (1996) (codified at 47 U.S.C. 78. 47 Restoring Internet Freedom, 33 FCC Rcd. 311, at 445 n.846 (2018) (quoting 79. Arizona v. United States, 567 U.S. 387, 398 (2012). 80. 73. 75. tionalizing its retreat and 180-degree turn from the net neutrality and 180-degree turn from tionalizing its retreat legal authority to reasoned that the agency has no rules, the FCC now instance, rules for all ISPs in the first adopt such conduct cluding bans on paid prioritization, blocking, and throttling. prioritization, blocking, and cluding bans on paid preting § Act and § 706 of Telecommunications 509 of the Communi- and cations Act as “hortatory” would support a legal basis to impose net neutrality conduct rules. legal basis to impose net neutrality would support a understood that supreme federal power was essential to coherent national government.”). dual sovereignty system; promoting (and at times straining) the suc- dual sovereignty system; promoting state spheres of government.cessful coexistence of the federal and Si- of governance will multaneously aware that a dual sovereignty-system heels of the earlier failed attempt at result in conflicts and also (on the Confederation that created only a organization under the Articles of times, federal law must take prece- weak federal government) that, at Framers included Article VI in the dence in the delicate balance, the Constitution. tion framework set out above, to affirmatively regulate the broadband tion framework set out above, to affirmatively providers (effectively in ISPs it now classified as information-service rule and pulling away from net neu- the form of the new transparency on §trality-style rules), the agency relied 101(a) of the Telecommuni- cations Act substantive grant of authority to which it anchored its Title I ancillary substantive grant of authority to which jurisdiction. practices like blocking, throttling, and paid prioritization, although it does not prohibit such practices). § 257(a) (2018)). U.S.C. § 257(a)) (citing 29 FCC Rcd. 1433, 1460, para. 77 & n.30 (2014)). band ISP’s conduct, the FCC imposed an affirmative transparency the FCC imposed an affirmative band ISP’s conduct, practices, to disclose certain network management rule requiring ISPs underlying its broadband in- performance, and commercial terms ternet access service. latory Federalism III. FEDERAL PREEMPTION OF STATE LAW constitutional design” 54 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 14 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 32 Side B 12/15/2020 11:16:45 12/15/2020 B 32 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 33 Side A 12/15/2020 11:16:45 . 55 EV AN- L . L. R A NGLISH L. Rev. 767, E , 86 V ORNELL , 79 C Preemption But only where state But only where 82 81 ICTIONARY OF THE , A D Thus, the Supremacy Clause 84 83 REEMPTION OHNSON ) P Nature of Preemption J Because the statutes Congress enacts are, Because the statutes Congress enacts AMUEL 85 TATUTORY CASTING A BROAD NET CASTING Writing for a plurality, Justice Gorsuch recently Writing for a plurality, Justice Gorsuch (S 86 note 82 at 260 (stating courts must “disregard state law if, but . art. VI, cl. 2. supra ONST Stephen A. Gardbaum, GUAGE ONGRESSIONAL But see (London, J.F. & C. Rivington 6th ed. 1785) (the Clause ensures that federal law This Constitution, and the Laws of the United States which and the Laws of the United States This Constitution, supreme Pursuance thereof . . . shall be the shall be made in shall be and the Judges in every State Law of the Land; of any Thing in the Constitution or Laws bound thereby, any notwithstanding. State to the Contrary With the Supremacy Clause the Founders conferred on Con- With the Supremacy Clause the It preserves federal law at the top, ensuring that where state law law at the top, ensuring that where It preserves federal 85. Arizona v. United States, 567 U.S. 387, 399 (2012) (explaining that “Congress 86. City of New York v. FCC, 486 U.S. 57, 63 (1988) (“When the Federal Govern- 84. Hillsborough Cnty., Fla. v. Automated Med. Labs, Inc., 471 U.S. 707, 713 82. Rose v. Ark. State Police, 479 U.S. 1, 3 (1986) (citations omitted) (recognizing, 83. Nelson, 81. U.S. C M K 225, 250-51 (2000) (quoting 2 S 769-74 (1994) (stating, “[c]ontrary to the prevailing view . . . supremacy and preemption are quite distinct legal concepts,” and arguing that the federal power to preempt state law does not emanate from the Supremacy Clause). has the power to preempt state law” under the Supremacy Clause). to ment acts within the authority it possesses under the Constitution, it is empowered law contradicts federal law (or vice versa and regardless whether the law (or vice versa and regardless law contradicts federal the federal law) precedes, coincides, or comes after state law at issue is the Supremacy Clause activated. forms the foundation for the constitutional preemption doctrine—thatforms the foundation for the constitutional state laws that “interfere is, when federal law preempts (displaces) with, or are contrary to, federal law.” beyond dispute, “Laws of the United States,” statutes preempt any beyond dispute, “Laws of the United of the Supremacy Clause.conflicting state laws under operation Al- an active issue, the Supremacy though in nearly all cases it is not exercise this power of preemption Clause is clear that Congress may of the authority granted it by the only when acting within the confines of Congress’s constitutional Constitution (it must be a valid enactment lawmaking power). only if, it contradicts a rule validly established by federal law”). (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.)). “[t]here can be no dispute that the Supremacy Clause invalidates all state laws that conflict or interfere with an Act of Congress”); Caleb Nelson, is “supreme,” that is, “highest in authority”)). gress—as embodiment of the federal law-making power the very established by the same under the separation of powers framework Constitution—a broad and expansive authority to enact legislation that preempts state law. conflicts or contradicts otherwise valid federal law, any conflict is nec- otherwise valid federal law, conflicts or contradicts in favor of the federal law. essarily resolved A. C 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 15 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 33 Side A 12/15/2020 11:16:45 12/15/2020 A 33 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 33 Side B 12/15/2020 11:16:45 M K C Y a- U.S. See [Vol. 54 . 1125, 1136- EV . L. R English v. General Elec. AND note 84, at 767-68. see , 65 V supra In other words, preemp- 89 Nonetheless, courts have rec- 90 Gardbaum, (11th ed. 2019); see 87 of Congress.” Delegating Supremacy? ICTIONARY D AW purpose L CREIGHTON LAW REVIEW S ’ 88 LACK , 567 U.S. at 399 (“There is no doubt that Congress may withdraw , B David S. Rubenstein, Arizona Purpose See . amend. X (“The powers not delegated to the United States by the Constitu- . amend. X (“The powers not delegated to Because the power of preemption places a heavy weight on the Because the power of preemption In light of the dual-sovereignty system of state and federal gov- system of state and In light of the dual-sovereignty 90. 89. 518 Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 87. 139 S. Ct. 1894, 1901 (2019) (citation and inter- Va. Uranium, Inc. v. Warren, 88. ONST C noted: “to win preemption of a state law[,] a litigant must point specif- of a state law[,] a litigant noted: “to win preemption does the displac- text or a federal statute that ically to a constitutional state law.” ing or conflicts with 37 (2012); Co., 496 U.S. 72, 78-79 (1990) (citation omitted) (“Preemption fundamentally is a ques- tion of congressional intent.”). tion jurisprudence requires Congress to have acted with the “objective, tion jurisprudence requires Congress goal, or end” of preempting state law. specified powers from the States by enacting a statute containing an express pre-emp- tion provision.”). Although the exercise of the federal preemption power, even when used expressly and proactively, does not itself act to restrict states from passing certain are laws or enacting certain regulations on a given topic, it does mean these state laws the susceptible to an easily foreseeable legal challenge on preemption grounds and, if preemption act is within the framework detailed below, one that is likely to prevail. an Thus, acting to preempt state laws in a proactive manner may chill state legislation; outcome that is not hard to imagine could motivate the use of the federal preemption power in this manner. U.S. 470, 485 (1996)) (emphasis added); tion . . . are reserved to the States respectively, or to the people.”).tion . . . are reserved to the States respectively, every Implicit in within its constitutionally-delegated author- action is the requirement that it must act ity (i.e., the laws must be valid). nal quotation marks omitted). delicate balance of federalism in favor of federal law and effectively delicate balance of federalism in to regulate a particular subject removes from the states any authority the state may have, if it is to wield or issue, regardless of any interests must do so intentionally.the power of preemption, Congress As the ultimate touchstone in every pre- Supreme Court has recognized, “the emption case” is “the ernment, the power of preemption becomes a significant tool for the of preemption becomes a significant ernment, the power authority vis-` to exercise regulatory power and federal government or very pre- tool that can be wielded either broadly vis the states; a cisely. (Con- give the makers of federal law Not only does it effectively agencies) the below, federal administrative gress and, as explored topic, or regula- displace state law over an issue, ability to unilaterally federal law-makers to act offen- tory arena, it also operates to allow law on a given topic, even where no sively to foreclose any future state conflict yet exists. preempt state laws.”). The Federal Government, by ultimately deriving its authority of limited enumerated powers. and power from the people, is a government 56 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 16 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 33 Side B 12/15/2020 11:16:45 12/15/2020 B 33 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 34 Side A 12/15/2020 11:16:45 95 57 When 92 The Paradox of Admin- The Supreme Court , 496 U.S. at 79). 93 , 567 U.S. at 399. in which any claimed pre- , Coventry Health Care of Missouri, English note 93, at 275; Arizona v. United 97 267, 275 (2015) [hereinafter “Ruben- Y ’ 91 Arizona supra OL see, e.g. . P Importantly, “[i]n all pre-emption UB 96 The Application of Chevron Deference in Regulatory Pre- . J.L. & P Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 94 note 88, at 1137; CASTING A BROAD NET CASTING ARV note 82, at 226; David S. Rubenstein, , 555 U.S. at 589 (explaining the two types of conflict preemp- . L.J. 263, 264 (1998) (citing Cipollone v. Liggett Group, Inc., 505 note 82, at 227-28 (quoting note 82, at 226-27 (quoting Rice v. Santa Fe Elevator Corp., 331 supra supra , 38 H EO see also Wyeth supra supra , FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990) (recognizing both , FMC Corp. v. Holliday, 498 U.S. 52, 56-57 , 87 G Nelson, at 228; Id. See, e.g. See Similarly, the Court finds implied congressional intent to preempt Similarly, the Court finds implied There are several ways, then, in which Congress wields the pre- ways, then, in which Congress There are several 96. 93. 95. Nelson, 94. Nelson, 97. Damien J. Marshall, 92. Rubenstein, 91. M K ognized that Congress may demonstrate its intent to preempt state may demonstrate its intent ognized that Congress or implicit manner. law in an express Congress does so, congressional intent to preempt is clear. congressional intent to preempt Congress does so, But Con- topic or subject in its power to remove a given gress is not confined of federal pre- or jurisdiction (the practical effect from state regulation expressly stating as much. emption) only when frequently finds an implied congressional intent to preempt state law frequently finds an implied congressional is “so pervasive” that “Congress where a federal regulatory scheme supplement it” or that the “federal has left no room for the States to the federal law “precludes enforce- interest . . . [is] so dominant” that a kind of preemption known ment of state laws on the same subject”; as “field preemption.” Inc. v. Nevils, 137 S. Ct. 1190 (2017) (analyzing express preemption provision within Inc. v. Nevils, 137 S. Ct. 1190 (2017) (analyzing the Federal Employees Health Benefits Act); States, 567 U.S. 387 (2012) (finding state law imposing a penalty for failing to complete or carry an alien registration document, a requirement under federal law, is preempted under the principle of field preemption); United States v. Locke, 529 U.S. 89 (2000) as- (applying this principle to find that Washington state regulations governing certain pects of tanker vessels and crew is preempted under the Ports and Waterways Safety Act as a matter of field preemption). stein, Paradox”]. cases,” and especially when Congress reaches into areas traditionally cases,” and especially when Congress the Supreme Court applies a occupied and regulated by the States, “presumption against . . . preemption,” 141, 153 (1982); tion—physical impossibility and obstacle preemption). U.S. 218, 230 (1947)); Rubenstein, Paradox, express and implied preemption principles). state law where federal and state law otherwise “actually conflict[state law where federal and state ].” emption power.simply dis- may pass a statute that First, Congress provision that by its express terms with a specific places state law state law. congressional intent to preempt clearly states a istrative Preemption emption Cases Conflict preemption, in turn, is implied where it would be physically Conflict preemption, in turn, is implied and federal law (“impossibility impossible to comply with both state as an obstacle to the accom- preemption”), or the state law “stands full purposes and objectives of Con- plishments and execution of the gress” (“obstacle preemption”). 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 17 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 34 Side A 12/15/2020 11:16:45 12/15/2020 A 34 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 34 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 note 88, at supra , 331 U.S. at 230) Whatever the , conflict arises), 98 Rice . 715, 719, 721 (1997) . EV Narrowly construed, . L. R 100 UMB Chevron v. Federalism: A Reassess- , 28 C Thus, although the Supremacy Thus, although 99 REEMPTION . 2097, 2127 (2004); Rubenstein, P EV New York State Conference of Blue Cross & Shield Plans New York State Conference of Blue Cross . L. R Rethinking Article I, Section 1: From Nondelegation to Ex- GENCY Howard P. Walthall, Jr., ., 139 S. Ct. at 1907 (citation and internal quotation omitted). A CREIGHTON LAW REVIEW OLUM see also . art. I, § (“All legislative powers herein granted shall be vested in 1 see also , 104 C 101 ONST Va. Uranium, Inc DMINISTRATIVE Under Article I of the U.S. Constitution, all legislative power (the Under Article I of the U.S. Constitution, 99. 98. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting 100. U.S. C 101. Thomas W. Merrill, emption is effective only if Congress also demonstrates a “clear and only if Congress also demonstrates emption is effective to preempt state law in that area. manifest purpose” 1143 (stating, “nothing in the constitutional text expressly forecloses congressional dele- gation of policymaking power to agencies”). (citations omitted); case, the “touchstone” is congressional intent to preempt and must, is congressional intent to case, the “touchstone” in the text and express or implied . . . be sought somehow, “whether statute at issue.” structure of the the exercise of that awesome power by Congress is tempered and awesome power by Congress the exercise of that by the requirement concerns, as demonstrated framed by federalism additionally, the state and federal law and, of some conflict between be the intended consequence and requirement that preemption must of federal law. is not a presumed “default” effect B. A (noting that Congress must demonstrate preemption is its “clear and manifest purpose” of although preemption may be based on either the express or implied doctrines preemption). then, only Congress can enact or “make” the Laws of the United States then, only Congress can enact or “make” state law under operation of that can expressly or impliedly preempt doctrine.the Supremacy Clause and preemption Yet as much as the exactly constitutes “Laws of the Constitution does not define what not expressly limit it to statutes United States,” it certainly does it provide for nor prohibit that passed by Congress and neither does legislative power it holds under the Congress may delegate the very Constitution. Clause and preemption doctrine function to ensure federal law doctrine function to ensure Clause and preemption law in certain circumstances (i.e prevails over state v. Travelers Ins. Co., 514 U.S. 645, 654-55 (1995) (stating, “we have never assumed v. Travelers Ins. Co., 514 U.S. 645, 654-55 but instead have addressed claims lightly that Congress has derogated state regulation, that Congress does not intend to supplant of pre-emption with the starting presumption state law”); Riegel v. Medtronic, Inc., 552 U.S. 312, 334 (2008) (Ginsburg, J., dissenting) (recognizing the principle of a presumption against preemption, especially when state police powers are implicated). a Congress of the United States.”). power to make the “Laws of the United States”) expressly rests with power to make the “Laws of the United the Legislative Branch—that is, Congress. ment of Deference to Administrative Preemption clusive Delegation U.S. 504, 518 (1992)); 58 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 18 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 34 Side B 12/15/2020 11:16:45 12/15/2020 B 34 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 35 Side A 12/15/2020 11:16:45 59 105 City of (2018) . 1463, 1464 there can EV 102 ORTITUDE F L. R ARY UDICIAL , J . & M Interpreting Agency Enabling M Indeed, the Supreme Court Indeed, the Supreme ALLISON A Positive Defense of Administrative , 41 W 104 As a result of the complex reali- As a result of the J. W Lars Noah, 103 ETER P see also . 63, 64, 93-94 (2014) (concluding that “as a matter of EV L. R CASTING A BROAD NET CASTING see generally ASON Consequently, although preemption by an adminis- Consequently, although preemption . M EO 107 , 517 U.S. at 758 (“To burden Congress with all federal rulemaking , 517 U.S. at 758 (“To burden Congress , 517 U.S. at 758. Joshua Hawkes & Mark Seidenfeld, Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472 (2001) (recognizing the Whitman v. Am. Trucking Ass’n, 531 U.S. , 22 G , 486 U.S. at 64 (framing the issue in an administrative context as, “whether See Loving Loving See 106 Although the early “non-delegation doctrine” limited the exercise “non-delegation doctrine” limited Although the early But just like the preemption power exercised by Congress, admin- But just like the preemption power 105. 107. La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369 (1986) (indicating agency 106. 104. 102. v. United States, 517 U.S. 748, 758 (1996) (explaining the non-delega- Loving 103. M K of legislative or law-making authority to Congress alone, authority to Congress of legislative or law-making (recognizing the hugely prevalent role administrative agencies play in the modern system). be no serious question today that the non-delegation doctrine as today that the non-delegation be no serious question longer governs. strictly applied no (2000) (noting that “few today question [administrative agencies’] legitimacy or central- (2000) (noting that “few today question [administrative ity as legal institutions”); has recognized that notwithstanding the non-delegation doctrine it notwithstanding the non-delegation has recognized that permitted to dele- long ago that Congress must be was “established that it could exercise itself.” gate to others at least some authority ties of today’s modern world, administrative agencies—existingties of today’s modern under of government—arethe executive branch bastions of congressionally- creating or “mak- both administering the law and delegated authority, regulations. ing” law by promulgating constitutional law, agencies with substantive rulemaking authority should be viewed as constitutional law, agencies with substantive rulemaking authority should be viewed having the power to preempt state law”); Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982) (“Federal regulations have no less pre-emptive effect than federal statutes.”); City of New York v. FCC, 486 U.S. 57, 63 (1988) (“The phrase ‘Laws of the United States’ [of the Supremacy Clause] encompasses both federal stat- utes themselves and federal regulations.”). must be acting “within the scope of its congressionally delegated authority”); would divert that branch from more pressing issues, and defeat the Framers’ design of a would divert that branch from more pressing workable National Government.”); general framework under which Congress can validly delegate authority, and although general framework under which Congress non-delegation doctrine as applied today). it still exists in theory, the limitations of the the federal agency has properly exercised its own delegated authority rather than sim- istrative agencies can preempt state law only when acting under valid istrative agencies can preempt state law-making authority. Here, that means the agency action must be (the sole limit on congres- consistent with not only the Constitution within the authority delegated to it sional action) but it also must be by Congress. New York Acts: Misplaced Metaphors in Administrative Law Acts: Misplaced Metaphors in Administrative Preemption tion doctrine: “the lawmaking function belongs to Congress . . . and may not be conveyed tion doctrine: “the lawmaking function belongs to another branch or entity”). Under this framework and the expansive understanding of Congress’s Under this framework and the expansive to administrative agencies, the ability to delegate its authority weight to a myriad of actions Supremacy Clause applies with equal agencies as to Congress undertaken by federal administrative itself. 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 19 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 35 Side A 12/15/2020 11:16:45 12/15/2020 A 35 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 35 Side B 12/15/2020 11:16:45 M K C Y W. note ASE Matthew [Vol. 54 Some Rice supra , , 45 C see note 88, at 1141 ALLISON W supra Paul E. McGreal, see also Moreover, administrative . 1126, 1140-41 (2007) (explaining see also EV 108 . L. R OLUM , 476 U.S. at 374 ; , 107 C CREIGHTON LAW REVIEW These are constraints, of course, that Congress These are constraints, of course, 109 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 515 (2009) (noting . 823, 859 (1995) (“When Congress grants an agency broad discretion within EV See La. Pub. Serv. Comm’n Let My People Go (Online): The Power of the FCC to Preempt State Laws that Let My People Go (Online): The Power of This difference necessarily arises as a function of the role and au- arises as a function of the This difference necessarily . L. R 109. 108. ES 104, at 109-10 (recognizing that as a function of its non-legislature status, agencies must act (1) on the basis of evidence [i.e., unlike legislative decision-making, agency the decision-making must not be arbitrary or capricious] and (2) within the confines of authorizing/enabling legislation). R Dunne, trative agency rests in part on the same constitutional foundation as in part on the same constitutional trative agency rests requires administrative agency preemption congressional preemption, framework. a revised analytical agencies.thority of administrative legislative While Congress makes authority, ad- exercise of its constitutional decisions as a first-order only can engage in legislative decision-making ministrative agencies delegated by Congress—aunder authority of second-order exercise such authority. ha[ve] way, administrative agencies “literally In this “unless and in a legislative decision-making manner no power to act” it.” until Congress confers power on (“Nothing in the Constitution itself vests authority in administrative agencies per se; (“Nothing in the Constitution itself vests authority in administrative agencies per rather, such authority is born of congressional grace.”). agencies, whether delegated authority by Congress or not, exist under agencies, whether delegated authority and not the legislative branch. the executive branch of government (constitutional) legislative author- Accordingly, without any natural the United States” only when acting ity, agencies can create “Laws of by Congress.under some authority delegated it Thus, administrative in their exercise of (dele- agencies are fundamentally constrained in two ways: (1) agen- gated) legislative authority or decision-making of their enabling or authorizing cies are constrained by the scope the necessary authority to an legislation (by which Congress delegates agencies must engage in evidence- agency), and (2) administrative avoid arbitrary and capricious deci- based decision-making and must (like notice and comment, sion-making by following certain procedures timeliness, etc.). the key question in the administrative preemption context is whether (1) “Congress has the key question in the administrative preemption the agency’s action falls within the scope of delegated the power to preempt” and (2) that power). need not consider in its first-order exercise of legislative decision-mak- need not consider in its first-order that under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., agency decisions can be set aside if they are arbitrary and capricious and without a “reasoned explana- tion”—that is, “the agency must show that there are good reasons for the new policy”); Ridgway v. Ridgway, 454 U.S. 46, 57 (1981) (regulations must not be “unreasonable, unauthorized, or inconsistent” with the enabling statute); which to act, Congress presumably intends that all agency actions within such discre- tion have the full force and effect of federal law.”); Rubenstein, with your Chevron?: Presumption and Deference in Regulatory Preemption ply whether Congress has properly exercised the legislative power”); ply whether Congress has properly exercised Prohibit Municipal Broadband 60 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 20 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 35 Side B 12/15/2020 11:16:45 12/15/2020 B 35 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 36 Side A 12/15/2020 11:16:45 61 112 affords great at 884-85 (citing In other words, Id. . 869, 881-900 (2008); EV 110 Chevron . U.L. R W , 102 N doctrine to the preemption power doctrine of judicial review applies; , 517 U.S. at 744 (deferring to agency’s interpre- Chevron Chevron see Smiley CASTING A BROAD NET CASTING note 110, at 881. Executive Preemption supra Of course, when an agency exercises its authority to Of course, when an agency exercises note 98, at 726-27 (“Agencies can seek to effect preemption analysis in 111 Young, at 883-84 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. supra See Id. , 517 U.S. at 744-45); When an agency preempts state law through regulatory action, it preempts state law through regulatory When an agency Second, administrative agencies may preempt state law in the 112. 111. 110. Ernest A. Young, M K ing. that agency preemption authority For our purposes, this means or congres- less on the same foundation as statutory must rest more or with these congressional intent in conjunction sional preemption: other limitations. of two processes.does so under one the rule, First, in promulgating effect, an that is intended to have preemptive regulation, or order a statute be engaged in the practice of interpreting agency may simply that itself preempts state law. or statutory scheme discretion on judicial review to an agency interpretation of a given discretion on judicial review to an any preemption at its core is ulti- statute and its preemptory effect, authority by Congress and mately an exercise of first-order legislative itself. emanates directly from Congress course of substantively exercising its congressionally-delegated au- administrative agencies can validly preempt state law by interpreting can validly preempt state administrative agencies statutes they are charged with ad- the preemptive nature or effect of ministering. Walthall, seems to give agencies a large amount of discretion in preempting seems to give agencies a large amount preemptive effect here wholly rests state law, the reality is that any statute created and passed by Con- on that which must be found in the gress. state law is the In other words, any regulation that preempts design, thereby lessening result of a clear and manifest congressional that could arise from an any potential federalism-based concerns than an elected Congress that unelected bureaucratic agency (rather the people) ostensibly preempt- at least in political theory represents a statute.ing state law in a regulation interpreting The key is that in reality of this first context, even if the current courts defer to an agency’s interpretation of a statute if the “statute is courts defer to an agency’s interpretation is not unreasonable. ambiguous and the agency’s interpretation” tation of a statute that, by its own express terms, preempts state law). interpret its statutes (and specifically, interpreting any preemptive ef- interpret its statutes (and specifically, fect or outcome), the two key ways. First, they can offer their interpretation of the preemptive effect of a two key ways. First, they can offer their interpretation of the preemptive effect of federal statute . . . . Second, the agency may promulgate regulations which have pre- emptive effect.”). 837, 842-44 (1984)). The Chevron doctrine only applies, as the Supreme Court clarified do in Smiley v. Citibank, 517 U.S. 735 (1996), where the agency’s interpretation has to re- with the substantive meaning of a statute (that is, what a statute “means, does, or quires”) even if the agency’s decision has a preemptive effect. Smiley While the addition of the 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 21 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 36 Side A 12/15/2020 11:16:45 12/15/2020 A 36 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 36 Side B 12/15/2020 11:16:45 M K C Y supra 115 Gener- [Vol. 54 118 note 110, at 881- , 529 U.S. at 873- , 476 U.S. at 374. supra , 486 U.S. at 66 (the agency see also Geier Again, however, administra- 117 City of New York see La. Pub. Serv. Comm’n note 88, at 1148-49 (determining under this supra note 98, at 726-27. Administrative agencies may preempt state Administrative agencies may preempt supra note 88, at 1150 n.146 (collecting cases); Sprietsma v. Mer- , 486 U.S. at 64 (noting that the key inquiry is “whether the , 486 U.S. at 64 (noting that the key inquiry CREIGHTON LAW REVIEW , 458 U.S. at 154; 116 Judicial Deference and Regulatory Preemption by Federal Agen- supra Rubenstein, , 458 U.S. at 153 (citations omitted); . 1233, 1236 (2010); see Walthall, EV Substantive preemption by an administrative agency is by an administrative agency Substantive preemption In other words, the agency—as In other words, the an independent action pur- . L. R 114 UL 113 See de la Cuesta de la Cuesta See, e.g., City of New York Under this framework, the same general preemption principles the same general preemption Under this framework, , 84 T 118. William Funk, 115. 114. 117. 113. 116. Rubenstein, ` ally, congressional preemption in whatever way must be an inten- ally, congressional preemption in power.tional exercise of the preemption Thus, to preempt state law may rely on authority delegated by by express provision, the agency authority includes the au- Congress only so much as that delegated thority. 900; Walthall, supra note 98, at 726-27 (“Agencies can seek to effect preemption analy- 900; Walthall, supra note 98, at 726-27 (“Agencies sis in two key ways. First, they can offer their interpretation of the preemptive effect of a federal statute . . . . Second, the agency may promulgate regulations which have pre- emptive effect.”); 74. must be “legally authorized” to substantively preempt state law); Rubenstein, tive preemption is (at least in theory) naturally more constrained vis- tive preemption is (at least in theory) as whether the agency pur- a-vis congressional preemption inasmuch or impliedly, it must be acting ports to preempt state law expressly delegated it by Congress. pursuant to authority granted or method, agencies may independently preempt state law based on (1) Congress’s delega- or tion of the power to preempt state law and to make the decision to preempt state law, (2) Congress’s grant of “general rulemaking authority”). law that conflicts with federal law when it is physically impossible to law that conflicts with federal law laws and when the state law comply with both federal and state and execution of the full “stands as an obstacle to the accomplishment purposes and objectives of Congress.” cury Marine, 537 U.S. 51, 65 (2002) (quoting Geier v. Am. Honda Motor Co., Inc., 529 cury Marine, 537 U.S. 51, 65 (2002) (quoting Geier v. Am. Honda Motor Co., Inc., bar U.S. 861, 869 (2000) (“Congress’ inclusion of an express pre-emption clause ‘does not the ordinary working of conflict pre-emption principles.’”). federal agency has properly exercised its own delegated authority” and on the “proper federal agency has properly exercised its such action”); Young, bounds of its lawful authority to undertake valid where the agency intended to preempt state law and in doing so intended to preempt state valid where the agency authority. within the scope of its delegated the agency is acting suant to its congressionally-delegated authority—promulgatessuant to its congressionally-delegated a rule, law. that purports to preempt state regulation, or order Such an ac- to the agency on an express delegation of discretion tion may be based of regulatory au- determinations within its realm to make preemptory the statutory agency’s general authority under thority or the scheme. apply.substantive capacity may Agencies acting in an independent pre-emption clause” in a promul- preempt state law with an “express the operation of the implied pre- gated regulation or order or through emption principles. cies note 88, at 1150. 62 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 22 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 36 Side B 12/15/2020 11:16:45 12/15/2020 B 36 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 37 Side A 12/15/2020 11:16:45 63 In- see also 121 in which the 120 But establishing the at 21 (citing Nat’l Cable & 122 . Id. . lead to the validity of the rest of Chevron Chevron automatically CASTING A BROAD NET CASTING Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 , finding that the FCC’s classification is a “reasonable , finding that the FCC’s classification 119 framework as a question of statutory interpretation. framework as a question of statutory See generally Id. Chevron NET NEUTRALITY LAW NET NEUTRALITY In 2018, the Federal Communications Commission (“FCC”) Communications Commission In 2018, the Federal 122. Mozilla Corp. v. FCC, 940 F.3d 1, 20 (D.C. Cir. 2019). The Court of Appeals 120. 33 FCC Rcd. 311 (2018). 121. 119. M K thority of the agency to make and to promulgate that very preemption to make and to promulgate that thority of the agency determination. deed, in its review of the 2018 Order, the D.C. Circuit upheld the deed, in its review of the 2018 internet as an information service FCC’s classification of broadband under agency, for the second time, re-classified broadband internet access time, re-classified broadband agency, for the second I information service.service as a Title (again) In doing so, the agency as it relates to broadband internet altered the regulatory landscape internet from the possible reach ISPs by wholly removing broadband carrier regulations applicable to of the mandatory Title II common thus, from any possibility of a net telecommunications services and, neutrality-style regulatory regime. To be sure, when the courts exer- over the FCC’s 2018 Restoring In- cise their power of judicial review the agency’s classification ternet Freedom Order (“2018 Order”), deferential review under the decision is subject to the well-known FCC’s proper jurisdiction via its reasonable classification of broad- FCC’s proper jurisdiction via its band internet does not Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 989-92 (2005)); the FCC’s order, and especially its preemption of state law.the FCC’s order, and especially its The clas- if, effectively, the classification sification of broadband internet (even regime will not be applied) and pre- means a net neutrality regulatory necessarily requires a separate empting state net neutrality laws given the implications for analysis under judicial review, especially for the latter.the delicate balance of federalism In other words, where, as here, the preemption of state law by an agency involves something more than statutory interpretation and, instead, is a sub- (1984). also noted that the United States Supreme Court previously upheld the FCC’s classifi- cation of cable modem internet service as an information service (and not a telecommu- nications service) under Step Two of policy choice” under Step Two of policy choice” under Step Two of Restoring Internet Freedom Order, 33 FCC Rcd. 311, at 320-21 (2018) (indicating FCC’s classification decision was based on its interpretation of § 3 of the Telecommunications Act). Chevron 2020] IV. OF STATE A BROAD NET: FCC’S PREEMPTION CASTING Restoring Internet Freedom Order promulgated its \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 23 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 37 Side A 12/15/2020 11:16:45 12/15/2020 A 37 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 37 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 at 470-71. Id. framework, the Chevron In fact, the 2018 Order ex- In fact, the 2018 Effectively, the agency argued it 125 —now that it has no legal argued 126 124 , 940 F.3d at 46. Similarly, the FCC refused to rely CREIGHTON LAW REVIEW Verizon v. FCC Mozilla Corp. at 450. Additionally, the FCC—entirely Additionally, the consistent with the D.C. Cir- Id. Not surprisingly, in its 2018 Order, the FCC itself renounced the in its 2018 Order, the FCC itself Not surprisingly, 123 encourage the deployment on a reasonable and timely basis of advanced tele- encourage the deployment on a reasonable . . . by utilizing . . . price cap regu- communications capability to all Americans promote competition in the local lation, regulatory forbearance, measures that methods that remove barriers telecommunications market, or other regulating to infrastructure investment. 124. Verizon v. FCC, 740 F.3d 623, 631-33, 655-59 (D.C. Cir. 2014) (noting that the 125. Restoring Internet Freedom, 33 FCC Rcd. at 470. 126. 123. Internet Freedom, 33 FCC Rcd. at 470. Restoring Specifically, the agency an- including the general conduct rules and prohibitions on paid priori- including the general conduct rules stantive exercise of agency authority, a more searching inquiry is of agency authority, a more searching stantive exercise required. to impose the authority permits the agency notion that any statutory former 2015 Or- rules imposed in the agency’s net neutrality-style der. Section 706 instructed the FCC “with regulatory jurisdiction over telecommunications Section 706 instructed the FCC “with regulatory services,” to: 104-104, sec. 706(a), 110 Stat. 56, 152 (1996) Telecommunications Act of 1996, Pub. L. (codified at 47 U.S.C. § 1302(a) (2018)). Under the deferential D.C. Circuit held that the FCC’s new interpretation of §D.C. Circuit held that the FCC’s new interpretation 706 of the Telecommunications Act was reasonable. pressly “eliminate[d] the conduct rules adopted in the [2015] Order— the conduct rules adopted in pressly “eliminate[d] tization, blocking, and throttling.” had no statutory authority to impose net neutrality rules because had no statutory authority to impose (as determined by the agency), under the appropriate classification authority under which to impose the net neutrality conduct rules im- which to impose the net neutrality authority under 2015 Order. posed by the previous on the policy statement contained within §on the policy statement contained within 509 of the Telecommunications Act (adding 47 U.S.C. § substantive authority to impose net neutrality regula- 230) as granting any statute as merely “hortatory” and, addition- tions for the same reason: interpreting this standing alone is not a delegation of ally, recognizing that a statement of policy authority to the agency from Congress. at Restoring Internet Freedom, 33 FCC Rcd. 480-81 (citing, in part, Comcast Corp. v. FCC, 600 F.3d 642, 652 (D.C. Cir. 2010)). Sec- the tion 230(b)(2) established that “[i]t is the policy of the United States: (1) to promote continued development of the Internet . . . ; [and] (2) to preserve the vibrant and compet- itive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C. § 230 (2018). Notably, however, although the agency argued the policy statement contained within § 230 was the wholly insufficient for the agency to impose substantive net neutrality rules, at same time it relies on the statute as demonstrating “Congress’s approval of our preemp- tive federal policy of nonregulation for information services.” 2018 Order, 33 FCC Rcd. at 480-81, 432. FCC could not impose anti-discrimination and anti-blocking rules (common carrier rules) on broadband internet providers where it did so while continuing to classify broadband internet as an information service—and not a Title II telecommunications service). cuit’s decision in cuit’s decision in nounced its new interpretation of § 706 of the Telecommunications Act (codified at 47 U.S.C. § instead of granting the agency regulatory authority, 1302) as “hortatory” and or deregulatory authority granted only directed the FCC to “exercise market-based the Communications Act.” under other statutory provisions, particularly 64 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 24 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 37 Side B 12/15/2020 11:16:45 12/15/2020 B 37 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 38 Side A 12/15/2020 11:16:45 65 As explained above, to exercise its As explained above, to exercise directing the agency to identify and directing the agency to identify 129 130 The transparency rule specifically re- The transparency rule specifically 128 At the same time, the agency did not leave At the same time, the agency did CASTING A BROAD NET CASTING 127 at 434. at 437-41. at 440. Interestingly, this transparency rule targets the same practices of Id. Id. Id. To be sure, another way to characterize what the agency did in its To be sure, another way to characterize Shall complete a proceeding for the purpose of identifying and eliminating, by regulations pursuant to its authority under this chapter (other than this sec- tion), market entry barriers for entrepreneurs and other small businesses in the provisions and ownership of telecommunications services and information services, or in the provision of parts or services to providers of telecommunica- tions services and information services. 128. 129. 130. Pub. L. 104-104, § Stat. 56, 152 (1996) (codified at 47 U.S.C. 101(a), 110 127. M K broadband internet is not under the auspice of Title II, and therefore, is not under the auspice of Title broadband internet rules can be applied.no net neutrality however, As discussed below, in this man- no authority to regulate the internet after finding it has it had authority to at the same time, that ner, the agency asserted, broadband in- from regulating even intrastate preempt state laws rules and regulations.ternet with net neutrality-style Stated differ- (and indeed purported to affirmatively ently, the agency which the agency state laws in a way in prospectively) preempt regulate in the first it had no federal authority to soundly determined instance. to impose net neutrality regula- 2018 Order by finding no authority is that the agency enacted, on the tions with a Title I classification regulatory framework over federal level, a “light-touch, market-based” broadband internet. Title I ancillary authority the FCC now asserted over broadband ISPs Title I ancillary authority the FCC classification”) it must ground (as a function of its “information service regulation, in some other any regulation, including the transparency existing statutory duty or responsibility. In its Order the FCC found regulation in §the necessary authority for its transparency 101(a) of the Telecommunications Act, quires ISPs to, in part, disclose any blocking, throttling, and paid pri- quires ISPs to, in part, disclose any engages; even if the order did not oritization practices in which it (as it would have done under a net outright prohibit these practices neutrality regulatory regime). ISPs wholly un-regulated. Rather, the agency imposed substantive their “network management regulations requiring ISPs to disclose terms” of the ISPs’ broadband practices, performance, and commercial internet access services. ISPs that net neutrality targets; the difference lies in the perceived role of govern- ment—whethergovernment is necessary to curb such harmful an active role by the practices or whether the free-market will act to dissuade these practices. At least ar- guably implicit in the imposition of the transparency requirement is that blocking, throttling, and paid prioritization, to some extent are harmful or at least undesirable practices from the standpoint of the internet market and as to internet consumers. § 257(a) (2018)). Section 257(a) commands that the FCC: 47 U.S.C. § 257 (2018). 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 25 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 38 Side A 12/15/2020 11:16:45 12/15/2020 A 38 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 38 Side B 12/15/2020 11:16:45 M K C Y an 135 [Vol. 54 , Arizona v. In its Or- 134 See, e.g. Specifically, the 2018 Order pre- ROVISION 133 P 136 REEMPTION CREIGHTON LAW REVIEW P The D.C. Circuit, under the deferential guiding hand The D.C. Circuit, , 940 F.3d at 47 (quoting Restoring Internet Freedom Order, 33 FCC XPRESS 131 , ultimately upheld as reasonable the agency’s interpreta- , ultimately upheld E S at 427-28. at 429. Generally, conflict preemption analysis is case-specific. In other Id. Id. Mozilla 132 Within its 2018 Order, the agency expressly preempted state law Within its 2018 Order, the agency In addition to renouncing any statutory basis for any affirmative any statutory basis for any In addition to renouncing Chevron 136. 47 U.S.C. § 160(a), (e) (2018). 133. Restoring Internet Freedom, 33 FCC Rcd. at 426. 134. 135. 131. Telecommunications Act of 1996, § 101(a) (codified at 47 U.S.C. § 257(a)); Re- 132. “independent authority” to preempt state law based upon “longstand- “independent authority” to preempt of information services” and, finally, ing federal policy of no regulation that § 401 of the Telecommunications Act embraces “regulatory flexi- to “forbear from applying any bility” and grants the agency authority regulation or any provision.” address market entry barriers into broadband internet as an informa- barriers into broadband internet address market entry tion service. United States, 567 U.S. 387, 399-414 (2012) (analyzing whether provisions of “Unlaw- fully Present Aliens,” S.B. 1070 (2010) are preempted in light of federal law, particu- larly 8 U.S.C. § 1304(e)); Nat’l Meat Ass’n v. Harris, 565 U.S. 452 (2012) (deciding whether Cal. Penal Code Ann. § 599f (2010) was preempted by the Federal Meat Inspec- tion Act, 21 U.S.C. §§ 601-695). der, the agency relied on conflict (impossibility) preemption, der, the agency relied on conflict empted state law conflicting with this federal scheme of light-touch empted state law conflicting with “impose more stringent require- regulation; state laws that would services and ISPs. ments” on broadband internet access of Rcd. at 446 n.847). tion of § collect evi- the agency direct authority “to 257 as delegating services market] such barriers [to the information dence to prove that exist.” words, conflict preemption is piecemeal judicial inquiry as to whether a specific state law (fully and properly enacted) conflicts with the federal law. that would “effectively impose rules or requirements that we have re- that would “effectively impose rules stringent requirements for any pealed . . . or that would impose more net neutrality regulation and promulgating the transparency rule, and promulgating the net neutrality regulation state laws 2018 Order also expressly preempted however, the FCC’s on broadband in- net neutrality-style regulations from imposing any ternet access services. The agency reasoned (1) broadband internet “should be governed . . . by a access service, as an information service, and (2) the Order “establishes a uniform set of federal regulations” based on the pro-competitive, calibrated federal regulatory regime Act of 1996, and there- deregulatory goals” of the Telecommunications fore preemption was appropriate. storing Internet Freedom, 33 FCC Rcd. at 446. A. FCC’ 66 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 26 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 38 Side B 12/15/2020 11:16:45 12/15/2020 B 38 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 39 Side A 12/15/2020 11:16:45 67 , 940 F.3d at any author- Thus, even if Mozilla Corp. v. 140 Mozilla Corp. Especially when considering pre- In doing so, the agency did not pur- In doing so, the 141 137 CASTING A BROAD NET CASTING Fidelity Fed. Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 154 But as the D.C. Circuit recognized in But as the D.C. 47 U.S.C. § 253(a), (d) (2018) (noting express congressionally-delegated because administrative agencies, by operation of the separa- agencies, by operation of because administrative See See 138 139 , Although the statutory scheme does not expressly delegate to the Although the statutory scheme does they exercise, having an authority to regulate necessarily goes an authority to regulate they exercise, having 141. 139. 940 F.3d 1 (D.C. Cir. 2019). 140. Mozilla Corp. v. FCC, 940 F.3d 1, 75 (D.C. Cir. 2019). After laying out the basic 137. Restoring Internet Freedom, 33 FCC Rcd. 311, at 427 (2018). 138. M K aspect of broadband service.” aspect of broadband 75. express statutory authority to preempt state law is not the end-all of a express statutory authority to preempt preempting state law must still preemption analysis, an agency action requires some statutory author- itself be a valid agency action, which ity to regulate. In this instance, the statutory scheme, when strictly construed—asargue is necessary in this context and consistent with I the constitutional framework—supportsthe conclusion that the preempt state law in the manner for agency simply has no authority to and when the agency’s regula- which it has no authority to regulate and limited authority in itself. tory authority is only an ancillary I, this is not simply indicative of agency preemption authority in Title as a whole.the agency’s delegated authority Rather in the realm of Congress explicitly delegated pre- Title II telecommunication services, emption authority to the FCC. emption of state law by an executive-branch administrative agency in emption of state law by an executive-branch the natural federalism concerns light of the separation of powers and Congress’s decision not to delegate inherent with agency preemption, in one of its two realms of au- the agency any preemption authority thority should be, and is, significant. As to telecommunications ser- port to rely on some express delegation of preemptory authority be- express delegation of preemptory port to rely on some such authority did not expressly delegate cause, simply, Congress authority. Title I information services regulatory within the agency’s agencies Court has held that administrative To be sure, the Supreme authority to state law without express statutory can lawfully preempt do so. (1982). administrative law framework—that agencies can act only under authority delegated it by Congress, including the power to preempt state law—the Court of Appeals recog- to nized: “By the same token, in any area where the Commission lacks the authority regulate, it equally lacks the power to preempt state law.” preemption authority where FCC determines a local “statute, regulation, or legal re- preemption authority where FCC determines a local “statute, regulation, or legal quirement” “prohibit[s] or ha[s] the effect of prohibiting the ability of any entity to pro- vide any interstate or intrastate telecommunications service”); 47 U.S.C. § 276(c) (2018) (noting express congressionally-delegated preemption authority for FCC’s regulations concerning payphone service). tion of powers constitutional design, rely on Congress for design, rely on Congress tion of powers constitutional ity FCC hand in hand with authority to preempt state law. hand in hand with authority to preempt 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 27 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 39 Side A 12/15/2020 11:16:45 12/15/2020 A 39 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 39 Side B 12/15/2020 11:16:45 M K C Y City of [Vol. 54 deference See United States air pollution agent Chevron any deference directly to an agency’s More succinctly, given the when considering an agency’s when considering physical, chemical substance or matter Chevron 144 142 any CREIGHTON LAW REVIEW , the Supreme Court broadly construed § 202(a)(1) of the Clean City of New York v. FCC, 486 U.S. 57, 64 (1988) (quoting And even more, the Communications Act, in creating the And even more, the Communications 143 , 367 U.S. 374, 383 (1961)) (deferring to agency’s preemption regulation under But see This is especially so when considering the basic framework under This is especially so when considering 143. 144. 47 U.S.C. §§ 151, 152(b) (2018). 142. this sometimes works against the agency itself. Interestingly, For example, in Arlington, Tex. v. FCC, 569 U.S. 290, 296 (2013) (explaining how vices under Title II, Congress, in its constitutional Article I first-order II, Congress, in its constitutional vices under Title a need for the FCC authority, recognized legislative decision-making Title II common law to effectively regulate under the to preempt state such author- scheme and, accordingly, it delegated carrier regulatory in its enabling statutes.ity to the agency trend in While the modern agency au- jurisprudence is to broadly construe administrative law enabling statutes thority under its applies to agency construction or interpretation of its enabling statutes). or combination of such agents, including interpretation of its jurisdiction and the scope of its statutory authority. constitutional concerns underlying any exercise of the preemption constitutional concerns underlying to point to some basis of clear con- power, an agency should be able preempt state law; and of course, gressional intent for the agency to congressional intent is the clearest while not the only way, express indication. And the lack thereof—in regu- contrast to the alternative latory regime—makesfor the agency to preempt congressional intent state law that much more opaque. which administrative agencies act—solely the authority dele- within gated to it by Congress. When Congress engages in a first-order exer- exercise of the federal preemption power, an express delegation of pre- preemption power, an express exercise of the federal schemes for in one of only two potential regulatory emption authority should be significant.the subject area determina- Indeed, even if not agency preemption framework, at a tive, in the federal administrative preemption provision in the minimum, the lack of a similar express adopted should be an indication of regulatory realm the agency has by Congress within that regulatory the agency’s authority delegated scheme. which is emitted into or otherwise enters the ambient air,” to hold that the Environmen- tal Protection Agency does have authority under the statutory scheme to regulate greenhouse gas emissions (carbon dioxide) and must do so. Massachusetts v. EPA, 549 U.S. 497, 528-32 (2007) (internal quotations omitted) (ellipses omitted). In another re- lated context, the Supreme Court has applied Air Act, in conjunction with § 7602(g) defining “air pollutant” as “ FCC, expressly fashioned and acknowledged a dual-governing struc- FCC, expressly fashioned and acknowledged over “intrastate communica- ture where the states retained authority tion service by wire and radio.” a statutory “broad grant of authority to reconcile conflicting policies” so long as the pre- emption decision is a “reasonable accommodation of conflicting policies that were com- mitted to the agency’s care by the statute . . . [and] the accommodation is not one that Congress would have sanctioned”). v. Shimer Massachusetts v. EPA 68 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 28 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 39 Side B 12/15/2020 11:16:45 12/15/2020 B 39 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 40 Side A 12/15/2020 11:16:45 , 69 is It is 146 , , courts 147 Congress deference di- deference, as Chevron deference neces- Chevron Chevron deference to FCC regulation Chevron . Under Chevron Yet even Chevron 145 , 569 U.S. 290 (applying City of Arlington, Texas v. FCC CASTING A BROAD NET CASTING , 569 U.S. at 296. The basic foundations of our system depend on it. The basic foundations of our system 149 Moreover, any application of City of Arlington, Tex. v. FCC, 569 U.S. 290, 296 (2013) (explaining how at 302 (noting that the Court has “even deferred to the FCC’s assertion 148 (quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 740-41 see id. City of Arlington Id. See generally City of Arlington deference applies to agency construction or interpretation of its enabling see also A major tenet of today’s administrative law jurisprudence is the A major tenet of today’s administrative Where agency preemption is concerned, courts should be loath to Where agency preemption is concerned, 148. 149. 146. 569 U.S. 290 (2013). 147. 145. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 M K agencies are even more constrained in that they can act in a legisla- more constrained in that they can agencies are even Congress has to the extent and in the manner which tive manner only authority. delegated to the agency its own legislative of any judicial review of their deference agencies enjoy in terms rulemaking under the auspices of “rooted in a background presumption of congressional intent.” “rooted in a background presumption cise of legislative decision-making to preempt state law, it must act in decision-making to preempt state cise of legislative manner.a clear and intentional the FCC to Allowing an agency like authority) to (a second-order exercise of legislative preempt state law or even implied for authority, whether express then find preemption disregards a broad and general grant of authority that matter, under limitations at play of institutional and constitutional the combination agency preemption.when considering power of Not only is the federal action by to some clear and intentional preemption limited premised on the notion that “‘Congress, when it left ambiguity in a ‘understood that the ambiguity statute’ administered by an agency, and desired the agency (rather would be resolved . . . by the agency, degree of discretion the ambigu- than the courts) to possess whatever ity allows.’” will defer to an agency’s reasonable interpretation or “construction of will defer to an agency’s reasonable the statute which it administers.” rectly to an agency’s interpretation of its jurisdiction and the scope of its statutory au- rectly to an agency’s interpretation of its jurisdiction and the scope of its statutory thority); Justice Scalia recognized in sarily requires and presumes, as a threshold matter, that the agency sarily requires and presumes, as and valid.action in question is properly authorized In other words, court can defer if the agency action there can be nothing to which the authorized. at issue is not statutorily (i.e., congressionally) intent and this necessa- rely on anything less than clear congressional of agency authority to pre- rily includes applying a strict construction empt state law. based upon the Communication Act’s broad delegation of authority to “execute and en- based upon the Communication Act’s broad delegation of authority to “execute and that its broad regulatory authority extends to preempting conflicting state rules”); Nat’l Cable and Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (cita- tions omitted) (quoting §§ 151, 201(b)) (applying (1996)). statutes). (1984); Chevron 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 29 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 40 Side A 12/15/2020 11:16:45 12/15/2020 A 40 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 40 Side B 12/15/2020 11:16:45 M K C Y , to Gon- . cf. [Vol. 54 But see City of deference to an On judicial review Chevron , 367 U.S. 374, 383 (1961)) 150 but without any clear foundation in but without any 151 United States v. Shimer Chevron deference applies based upon Congress’s “express[ ] dele- , 458 U.S. at 162 (recognizing a principle that broad con- CREIGHTON LAW REVIEW Chevron Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019) (quoting Puerto , 486 U.S. at 64 (quoting See But see de la Cuesta Thus, for purposes of the FCC’s 2018 Order, the ultimate inquiry Thus, for purposes of the FCC’s 2018 150. 151. engage in preemption decision-making).engage in preemption the bal- The ability to alter government and the state govern- ance of power between the federal and should thus require more of ments requires more of Congress of the basic principle underlying agencies, even if only as a function the separation of powers—that act only under the au- agencies can thority delegated by Congress. zales v. Oregon, 546 U.S. 243, 258-59 (2006) (declining to apply zales v. Oregon, 546 U.S. 243, 258-59 (2006) Finding sufficient delegation of preemption authority in broad grants delegation of preemption authority Finding sufficient a kind of defer- that are all too common today, of regulatory authority vein as ence in the same interpretive rule from the Attorney General concerning the Controlled Substances Act, interpretive rule from the Attorney General the Attorney General has its rulemaking because the enabling statute under which grant of broad regulatory authority, but in- power as to controlled substances is not a stead delegates only “limited powers, to be exercised in specific ways”). of an agency’s express preemption of state law, courts should require preemption of state law, courts of an agency’s express in congres- action be traced to a secure foundation that the agency preemption (i.e the agency to wield the power of sional intent for (deferring to agency’s preemption regulation under a statutory “broad grant of authority ac- to reconcile conflicting policies”; so long as the preemption decision is a “reasonable commodation of conflicting policies that were committed to the agency’s care by the stat- ute,” it will “not be disturbed unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned”). congressional intent of any nature, contravenes the very notion that of any nature, contravenes the congressional intent Congress itself—much an administrative agency—must less inten- federal power of preemption. tionally wield the gat[ion] to the [Federal Reserve] Board the authority to prescribe regulations contain- gat[ion] to the [Federal Reserve] Board the or other provisions’”ing ‘such classifications, differentiations, as the Board deems of [the Truth in Lending Act]”); “necessary or proper to effectuate the purposes gressional delegation of authority to regulate is not cabined by express authority to pre- empt state law in particular areas). Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988)) (rec- ognizing the principle that “to win preemption of a state law[,] a litigant must point specifically to ‘a constitutional text or a federal statute’ that does the displacing or con- flicts with state law”). Thus, preemption of state law by federal law necessarily begins and ends with Congress. must be whether the agency is acting under and within the scope of must be whether the agency is acting by Congress in promulgating federal power or authority so delegated net neutrality-style regula- its order preempting states from imposing tions on broadband internet. Certainly, no real question or dispute preempt state broadband in- exists that Congress itself could validly form, but it has not done so here. ternet access regulation in whatever New York force the Communications Act” and to “prescribe such rules and regulations as may be force the Communications Act” and to “prescribe the provisions” of the Communications Act); necessary in the public interest to carry out 541 U.S. 232, 238 (2004) (citing 15 U.S.C. Household Credit Servs., Inc. v. Pfennig, § 1604(a)) (indicating 70 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 30 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 40 Side B 12/15/2020 11:16:45 12/15/2020 B 40 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 41 Side A 12/15/2020 11:16:45 71 The 154 Moreover, the 153 -esque deference or -esque deference because the agency’s to preempt state law 152 Chevron intends acting to preempt state law, the separation acting to preempt CASTING A BROAD NET CASTING , 486 U.S. at 65-66. agency , 47 U.S.C. § 253(d) (2018). See, e.g. City of New York Under administrative law principles, when acting in a substan- Under administrative law principles, While Title II of the relevant FCC statutory scheme speaks di- the relevant FCC statutory scheme While Title II of 153. 47 U.S.C. §154. 154(i) (2018). 152. M K And when it is an And when it is an FCC’s 2018 Order is clear that the FCC FCC’s 2018 Order is clear that the nature of Title I’s ancillary authority requires that any regulatory ac- nature of Title I’s ancillary authority foundation in an existing stat- tion the FCC takes must find a concrete utory duty or mandate. To allow preemption on the broad grant of limited ancillary authority other- regulatory authority given Title I’s circular reasoning, allow the wise would, as a course of the resulting agency to enact virtually any regulation. This would not be consistent delegated it by Congress in Title with the agency’s ancillary authority I. the FCC may lawfully preempt tive rather than interpretive capacity, internet access if: (1) the state law concerning intrastate broadband and (2) its preemption action is agency intends to preempt state law, authority. within the confines of its congressionally-delegated reliance on a broad and general grant of regulatory authority to act and general grant of regulatory reliance on a broad regulatory sphere. within a particular preemption of state law, rectly to the agency’s that imposes in any form common carrier net neutrality-style rules or that imposes in any form common internet access.regulations on ISPs providing broadband While it is enough in congressional preemption (as a first-order exercise of legis- lative decision-making) to validly preempt state law by indicating Congress’s intent to do so, because agencies are constrained by the scope of power delegated by Congress, the agency’s intent to preempt is not itself sufficient. be within the scope of its con- Such action must gressionally-delegated authority. the preemption context, the And in question is whether the agency has “properly exercised its own dele- classification decision brings broadband internet under its Title I ju- brings broadband internet under classification decision law, then, the agency must find risdiction, to validly preempt state authority to do so under Title I. But under Title I, the agency has only authority to “perform any and a broad and general grant of regulatory and issue such orders . . . as all acts, make such rules and regulations, of its functions.” may be necessary in the execution of powers and constitutional framework requires that it must have the framework requires that of powers and constitutional by Congress to pre- to do so through a delegation power or authority just to regulate generally.empt state law, not on This determination, require more than judicial review, should 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 31 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 41 Side A 12/15/2020 11:16:45 12/15/2020 A 41 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 41 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 Step Two. and (2) state- Chevron 158 159 47 U.S.C. § the FCC to 257(a) (2018) (directing it does not tie its express preemption it does not tie 47 U.S.C. § 303(r) (2018). 155 See 157 see also , 600 F.3d at 651-58. CREIGHTON LAW REVIEW In other words, it has authority to impose regulations In other words, 156 Neither should it be enough for an agency to promulgate a Neither should it be enough for an at 63-64. 160 See Comcast Corp. Id. , 940 F.3d at 47. Nonetheless, the validity of the 2018 Order’s substantive trans- In exercising its Title I regulatory authority, however, courts have In exercising its Title I regulatory Under its Title I authority, the FCC only has ancillary authority authority, the FCC only has ancillary Under its Title I 159. 47 U.S.C. §160. 230(b)(2), (f)(2) (2018). 156. 47 U.S.C. §157. 151. seems to me to be some argument concerning whether 47 U.S.C. § There 257 158. 47 U.S.C. § 151(i); 155. gated authority,” i.e., a “congressionally delegated authority . . . [to] i.e., a “congressionally delegated gated authority,” pre-empt state regulation.” ments of the Act’s policy: “preserve . . . unfettered by Federal or State ments of the Act’s policy: “preserve free market . . . for the internet regulation” a “vibrant and competitive (with the latter defined as and other interactive computer services” provides or enables computer access “any information service . . . that by multiple users to a computer server”). “complete a proceeding for the purpose of identifying and eliminating, by regulations “complete a proceeding for the purpose of (other than this section), market entry pursuant to its authority under this chapter of . . . information services”); Restoring barriers . . . in the provision and ownership (2018); Comcast Corp. v. FCC, 600 F.3d 642, Internet Freedom, 33 FCC Rcd. 311, at 438 attempt to dictate the operation of an oth- 659-60 (D.C. Cir. 2010) (“[T]he Commission’s more than its obligation to issue a report erwise unregulated service based on nothing defies any plausible notion of ‘ancillariness.’”). a valid affirm- Any failure to promulgate of ative regulation on broadband ISPs would certainly weaken the agency’s assertion preemptive authority because it would in that instance be even more clearly based upon general federal policy which is not sufficient to exercise Title I ancillary authority. Nota- bly, in reviewing the 2018 Restoring Internet Freedom Order, the D.C. Circuit held that the agency could rely on § 257 to impose the substantive requirement it did under its Title I ancillary authority, finding under standard principles of reviewing an agency’s decision making that it was a “permissible” interpretation under provision to any equivalent statutory authority.provision to any the FCC Instead, to “perform upon (1) the broad grant of authority only purports to rely and issue orders . . . make such rules and regulations, any and all acts, of its functions,” as may be necessary in the execution on Title I information services that rest on some pre-existing statutory services that rest on some pre-existing on Title I information duty. to substantive transparency regulation While the agency ties its a statutory responsibility, regulation that broadly preempts state law.regulation that broadly preempts When properly exercised, can satisfy the independent-statutory-duty foundational requirement for the FCC to im- can satisfy the independent-statutory-duty pose a transparency regulation. parency requirement is outside the scope of this paper because the agency’s preemption provision was not directed to preempt conflicting state law relating to this substantive requirement. Instead, the FCC sought to preempt state law after finding, in effect, that the federal agency itself did not have authority to regulate ISPs in the proscribed manner. held that a mere statement of policy does not provide the necessary held that a mere statement of policy the exercise of regulatory au- pre-existing statutory duty to support thority. to regulate. Mozilla 72 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 32 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 41 Side B 12/15/2020 11:16:45 12/15/2020 B 41 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 42 Side A 12/15/2020 11:16:45 73 This ap- 163 . 1547, 1568-69 (2007) (defining “preemptive EV within its regulatory ancillary author- within its regulatory 161 Asymmetrical Regulation: Risk, Preemption, and the CASTING A BROAD NET CASTING , 82 N.Y.U. L. R , Geier v. Am. Honda Motor Co., 529 U.S. 861, 874-75 (2000) (address- It would be wholly inconsistent, though, if the agency inconsistent, though, if the It would be wholly William W. Buzbee, 162 telecommunication services) were outside the scope of the telecommunication services) were See See, e.g. not By operation of the express preemption provision in its Order, the By operation of the express preemption Stated differently, the FCC exhibited a desire to exercise the 162. 163. Restoring Internet Freedom, 33 FCC Rcd. 311, at 428. 161. M K preemption has a very necessary function and role in our dual-sover- very necessary function and role preemption has a eignty system. lawful exer- instance, it can ensure that any Here, for a “ceiling” of ancillary-jurisdiction to impose cise of the FCC’s agency, regulation that the proach was, in large part, the main function of the Order’s classifica- proach was, in large part, the main service as an information service: tion of broadband internet access the realm of Title II telecommuni- removing broadband internet from carrier regulations (the statutory cations services for which common rules) would apply.justification of any net neutrality-style Thus, the supported its 2018 Order on the agency effectively promulgated and delegated authority to impose net basis that it had no congressionally neutrality regulations. In other words, the agency effectively argued (because the “correct” clas- that the earlier net neutrality regulations scheme was information services sification required by the statutory and ceilings” as where “the federal government sets a standard of performance or regulatory requirement reflecting a choice about the degree of required protection, but prohibits any additional or more stringent regulation by states”). ity, has deemed sufficient to regulate broadband internet access ser- sufficient to regulate broadband ity, has deemed regulatory by state-based net neutrality vices, is not undermined schemes. ing federal regulation that sets a “minimum airbag standard” that “deliberately pro- vided the manufacturer with a range of choices among different passive restraint devices” preempted a common-law “no airbag” action under D.C. tort law); could displace state law much less exercise its Title I jurisdictional law much less exercise its Title could displace state basis of a congres- regulating solely on the authority by affirmatively an affirmative of non-regulation, rather than sional policy statement statutory mandate or responsibility. regulation that would conflict with FCC sought to preempt any state by the 2018 Order. the “deregulatory approach” intended agency’s proper statutory authority. To regulate, though, it remains authority to do so.the agency must have the statutory Thus, agencies (federal) authority to impose much cannot preempt laws they have no manner, allowed the agency to less where Congress has not, in some arena in which the agency, by preempt state laws in the regulatory discretion, has itself entered. exercising its lawful administrative weighty power of federal preemption in an area and under circum- stances in which it expressly (first) found that Congress did not dele- gate to the agency its own power to affirmatively or substantively Floor/Ceiling Distinction 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 33 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 42 Side A 12/15/2020 11:16:45 12/15/2020 A 42 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 42 Side B 12/15/2020 11:16:45 M K C Y It is [Vol. 54 regulated, 164 And this un regulate.”). to 166 CREIGHTON LAW REVIEW Yet if the separation of powers is to mean anything, Yet if the separation of powers is 165 , Ark. Elec. Co-op. Corp., v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 384 See, e.g. At the same time, however, the Supreme Court has carefully es- however, the Supreme Court has At the same time, Federalism requires maintaining a delicate balance; one that re- Federalism requires maintaining 165. Telecommunications Act, Pub. L. No. 104-104, 110 Stat. 56, 56 (1996). 166. 47 U.S.C. §§ 154(i), 303(r). 164. equally clear that Congress intended the Telecommunications Act equally clear that Congress intended regulation to secure lower prices “[t]o promote competition and reduce telecommunications consum- and higher quality services for American of new telecommunications ers and encourage the rapid deployment technologies.” regulate in the manner proscribed.regulate in the manner to preempt The agency purported authority in a otherwise existing regulatory states from exercising either. found it had no authority to do manner the agency This clear disconnect—although on nor ultimately relied neither determinative in the Or- justification of its preemption provision by the FCC in its der—emphasizes and critically analyze adminis- the need to carefully use of preemption authority. trative agencies’ body (Congress or that a federal law-making tablished the principle regulation in a decide as a policy matter to forgo agencies) can validly may have as much preemptive certain area and that this decision regulate a certain area. force as a decision to affirmatively and in that event would have as much pre-emptive force as a decision broad authority is only ancillary regulatory authority. Simply, in this context, where state net neutrality-style regulations ostensibly would interfere or conflict with the FCC’s order only inasmuch as the agency has determined it has no authority to otherwise regulate ISPs in this and if there is to be any end to the scope of federal authority (which, and if there is to be any end to the design, is by definition required by our dual-sovereignty constitutional agencies can act only under the au- at some level), it must mean that thority they are delegated. Preempting state law that the agency it- to regulate violates this principle. self disclaims statutory authority of the federal preemption power, quires diligent attention to the use as a second-order exercise of the especially by administrative agencies preemption power. Where preemption is concerned, courts should it may be or how easily it hesitate to find, no matter how appealing or federal policy, that Congress has advances perceived congressional under a broad and general grant of delegated the power of preemption authority. applicable to broad- Here, the relevant statutory scheme FCC is bound to act offers only a band ISPs and under which the . . . broad delegation of authority to “make such rules and regulations be as may be necessary in the execution of its functions” or “as may necessary to carry out the provisions of this chapter.” (1983) (emphasis in original) (“[A] federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left 74 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 34 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 42 Side B 12/15/2020 11:16:45 12/15/2020 B 42 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 43 Side A 12/15/2020 11:16:45 75 , the Supreme Court ex- 47 U.S.C. § 152(a), (b) (1993) See Arizona v. United States , 567 U.S. at 400-02. In this case, however, Con- Arizona CASTING A BROAD NET CASTING But at the same time, it is equally clear in this But at the same time, it is equally 167 168 Certainly, Congress can without question clarify an intent to pre- can without question clarify an Certainly, Congress 167. United States v. Shimer, 367 U.S. 374, 383 (1961). 168. Importantly, the companion of conflict preemption, “field preemption,” is not M K manner, a broad grant of regulaty authority should not be enough for grant of regulaty authority should manner, a broad state law. the agency to preempt intent the FCC the same as the de-regulatory empt state law (just statutes contain- preemption provision) by enacting cites in its express it did in Title II of preemption language, as ing express administrative Act.the Telecommunications I, instead Yet it did not do so in Title authority.broad and general grant of regulatory relying only on a Ad- pursuant to its del- when an administrative agency mittedly, however, statutorily promulgates regulations that advance egated authority is conceivably less concern that any stated congressional policy, there “is not one that Congress would resulting preemption of state law have sanctioned.” plained that field preemption is an exercise of the preemption power wherein “States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona v. United States, 567 U.S. 387, 399 (2012). There, the Court found that the federal stat- utes concerning alien registration was so “comprehensive,” in effect, “the Federal Gov- law ernment ha[d] occupied the field of alien registration,” and therefore a state re- creating a state misdemeanor on the failure to abide by federal alien-registration quirements was preempted. (stating that the statutes “apply to all interstate and foreign communication . . . [and] nothing in this Act shall be construed to apply or to give the [FCC] jurisdiction with or respect to (1) charges, classifications, practices, services, facilities, or regulations for any in connection with intrastate communication service by wire or radio of carrier . . . .”). gress has both recognized and maintained, by statute, the federal-state regulatory spheres regarding wire and radio communications. case the FCC cannot substantively exercise its properly delegated Ti- case the FCC cannot substantively recognizing congressional policy, tle I ancillary authority by simply less able to exercise preemptory and it should accordingly be much law and regulations when other- authority that acts to displace state authority.wise constrained to an ancillary regulatory Even where a conflicts with a federal scheme, it state regulatory scheme ostensibly is within Congress’s wheelhouse—and administrative agencies’ not wheelhouse—toensure the federal scheme of de-regulation is not un- not expressly delegated to the ad- dermined, especially when it has to preempt state law in the “un- ministrative agency the power regulated” information services arena. While this would require Con- a first-order exercise of legislative gress to take the necessary steps as likely, to simply (expressly) dele- decision-making or, as seems more authority to utilize under gate to the agency the necessary preemption and institutional structure de- its Title I authority, the constitutional mands as much. asserted to apply in this instance. In 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 35 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 43 Side A 12/15/2020 11:16:45 12/15/2020 A 43 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 43 Side B 12/15/2020 11:16:45 M K C Y ET [Vol. 54 N The peti- 170 —challenged:the under that which REEMPTION 172 P only Much in the same way, Notably, the FCC did not, ROAD 177 brought as a comprehensive B 178 S 169 , and a two to one majority af- 173 FCC’ alongside twenty-two state attorneys alongside twenty-two 171 READTH OF along with the agency’s reliance on § along with the agency’s reliance 257 to is- B CREIGHTON LAW REVIEW 174 Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019). , 940 F.3d at 18-35, 97 (Williams, J., concurring in part and dissent- Mozilla Corp. v. FCC Mozilla Corp. v. at 74 (“The Governmental Petitioners challenge Preemption Directive And most importantly for purposes of this article, the two And most importantly for purposes Chevron at 20, 46. at 47-49. at 74-75 (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 at 75. 175 See Mozilla Id. Id. See id. Id. Id. See generally 176 ARROWING THE Based on the foundational principle of administrative law that ad- Based on the foundational principle In October 2019, the United States Court of Appeals for the D.C. the United States Court of Appeals In October 2019, 171. Joint Brief for Petitioners at i - v, Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 172. Proof Brief for Government Petitioners, Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. 173. 174. 177. 175. 176. 178. 169. 940 F.3d 1 (D.C. Cir. 2019). 170. B. N tioners—consistingand business associations, of online companies, public interest organizations, is granted them by Congress, the D.C. Circuit recognized that the FCC is granted them by Congress, the D.C. and if it is acting within the scope of can “preempt state law only when its congressionally delegated authority.” FCC’s classification of broadband internet as an information service, of broadband internet as an information FCC’s classification of §its interpretation reliance on 706 as “hortatory,” the agency’s § finally, the validity of 257 to impose transparency requirements, and the preemption provision. In its decision, a unanimous panel upheld the FCC’s classification decision, the court recognized (as a matter of analytical consistency and neces- the court recognized (as a matter the authority to regulate, it equally sity) that where the agency “lacks law.” lacks the power to preempt state before the D.C. Circuit, claim either an express statutory authority to before the D.C. Circuit, claim either or that its Title I ancillary authority preempt state net neutrality laws to which it may validly preempt to regulate ISPs provides an avenue legal challenge to the entirety of the agency’s 2018 Order. the entirety of the agency’s 2018 legal challenge to firmed the agency’s interpretation of §firmed the agency’s interpretation 706 as “reasonable” under the auspice of general (in addition to the District of Columbia) general (in addition sue its substantive transparency rule under its Title I ancillary au- sue its substantive transparency thority. 2019) (No. 18-1068) (Aug. 20, 2018) 2018 WL 5282022. Cir. 2019) (No. 18-1068) (Aug. 20, 2018) 2018 WL 5282010. ing in part). on the ground that it exceeds the Commission’s statutory authority. They are right.”). to one majority vacated the 2018 Order’s preemption provision in to one majority vacated the 2018 whole. (1986)). ministrative agencies have the authority to act ministrative agencies have the authority Circuit decided 76 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 36 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 43 Side B 12/15/2020 11:16:45 12/15/2020 B 43 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 44 Side A 12/15/2020 11:16:45 77 , 940 , 940 the Lou- 182 , 940 F.3d at But as noted see Mozilla Corp. 181 see Mozilla Corp. , 406 F.3d at 691-92). Mozilla Corp. essentially permits an , of conflict preemp- the doctrine 183 , Am. Lib. Ass’n. Mozilla Corp. 180 Rather, in its Order and before the D.C. Rather, in its Order at 76 (quoting 179 possible to separate the interstate and intra- possible to separate the interstate Id. CASTING A BROAD NET CASTING not : “ancillary jurisdiction exists only when ‘(1) the Commission’s general at 75-76 (citing Am. Lib. Ass’n v. FCC, 406 F.3d 689, 691-92 (D.C. Cir. at 75-76 (citing Am. Lib. Ass’n v. FCC, Id. As an extension of implied conflict preemption doctrine, As an extension of implied conflict Under the first theory, the FCC asserted in its Order that because Under the first theory, the FCC asserted 181. Restoring Internet Freedom, 33 FCC Rcd. at 429-31; 182. As the D.C. Circuit recognized in 183. 476 U.S. 355 (1986). 180. Restoring Internet Freedom, 33 FCC Rcd. 311, at 429-31; 179. M K state net neutrality laws. state net neutrality F.3d at 76. impossibility exception, rooted in the Supreme Court’s opinion in impossibility exception, rooted in F.3d at 74-76. 81-82 (citations and internal quotation marks omitted). above, simply because state regulation would conflict with a federal above, simply because state regulation an agency authority to, as a second- regulatory objective does not give categorically preempt all order exercise of legislative decision-making, such state laws. Preemption (and, in this case because of its ancillary something more. authority under Title I) requires administrative agency to act to preempt state regulation of intrastate administrative agency to act to preempt matters “when it is ‘ tion does not apply in this circumstance with regards to the FCC’s 2018 Order inasmuch as the agency conceded at oral argument that the preemption provision is broader than conflict preemption and, in addition, conflict preemption is a “fact-intensive inquir[y]” and involving whether a specific state regulation is an “obstacle to the accomplishment execution of the full purposes and objectives of Congress.” Circuit, the agency relied on two theories of its legal authority to pre- relied on two theories of its legal Circuit, the agency (1) implied such a broad and conclusory fashion: empt state law in conflict preemption under a derivative of the preemption authority (2) that preemp- the “impossibility exception,” and doctrine known as of nonregulation consistent with the “federal policy tion is necessarily that not preempt- (or stated in the negative, for information services” from Title II to altering the regulatory framework ing state law while set forth under inconsistent with the federal policy Title I would be scheme). the Title I regulatory jurisdictional grant under Title I . . . covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.’” 2005). ancillary jurisdiction test it previously applied in The panel applied the two-step isiana Public Service Commission v. FCC isiana Public Service Commission “it is impossible or impracticable to regulate the intrastate aspects of a “it is impossible or impracticable to affecting interstate communica- [broadband internet] service without inconsistent with the regula- tions,” state laws imposing regulations in its 2018 Order (net neutrality tory approach the FCC was adopting federal regulatory objectives,” i.e., regulations) would “interfere with regulatory system resulting the balanced free-market, low-pressure classification. from the FCC’s information services American Library 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 37 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 44 Side A 12/15/2020 11:16:45 12/15/2020 A 44 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 44 Side B 12/15/2020 11:16:45 M K , C Y 186 La. Pub. Mozilla [Vol. 54 . 187 (2006). , 909 F.2d at EV In Mozilla Corp. 184 negate the exer- . L. R A , 92 V because regulation of the because regulation Minn. Pub. Utilities Comm’n v. , 476 U.S. at 375-76 n.4) (alteration See In a sense, the D.C. Circuit Because the agency’s classifi- Pub. Serv. Comm’n of Md. 188 requirement in which the agency 187 189 Chevron Step Zero 185 La. Pub. Serv. Comm’n , 476 U.S. at 375 n.4 (1986)) (emphasis in original); , 476 U.S. at 375 n.4 (1986)) (emphasis in CREIGHTON LAW REVIEW Step Zero-style Cass R. Sunstein, , 940 F.3d at 78. , 940 F.3d at 77 (quoting of its own lawful authority of its own lawful ] FCC , 476 U.S. at 368 (discussing preemption when “compliance with both fed- , 476 U.S. at 368 (discussing preemption when [ Chevron . Mozilla Corp. Id See generally Mozilla Corp. , the D.C. Circuit recognized the three-part test the court of ap- recognized the three-part test the , the D.C. Circuit Indeed, the D.C. Circuit agreed, recognizing that “contrary to the Indeed, the D.C. Circuit agreed, recognizing In this context, because the FCC classified broadband internet ac- In this context, because the FCC classified La. Pub. Serv. Comm’n 186. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 976 187. 188. 185. 189. 184. Public Serv. Comm’n of Md. v. FCC, 909 F.2d 1510, 1515 (D.C. Cir. 1990) (quot- “the impossibility exception presupposes the existence of statutory au- “the impossibility exception presupposes as a substitute for that necessary thority to regulate; it does not serve delegation of power from Congress.” state components of the asserted FCC regulation.’”state components 1515) (emphasis added). Although FCC cites a two-part test, the third prong is necessa- rily implied within the ostensibly two-prong tests. interstate aspects of the matter cannot be unbundled from regulation of the matter cannot be unbundled interstate aspects aspects.” of the intrastate FCC, 483 F.3d 570, 578 (8th Cir. 2007) (stating the impossibility exception permits FCC the to preempt state regulation if (1) separation of interstate and intrastate aspects of service is impossible and (2) “federal regulation is necessary to further a valid federal regulatory objective”); Nat’l Ass’n of Regulatory Utility Comm’rs v. FCC, 880 F.2d 422, 429 (D.C. Cir. 1989) (quoting in original) (stating “[w]here [the] FCC acted within its authority . . . , preemption of in original) (stating “[w]here [the] FCC acted within its authority . . . , preemption the inconsistent state regulation . . . [will be] upheld since state regulation would negate federal tariff” (i.e., the exercise of lawful authority)). (2005). applied a cation decision relegated its regulatory authority to its Title I ancil- cation decision relegated its regulatory express preemption provision lary authority and because the agency’s of this limited authority, it cannot is necessarily outside the sphere to broadly preempt state law as a rely on the impossibility exception matter of first-order legislative decision-making. exception’ does not create Commission’s argument, the ‘impossibility air.” preemption authority out of thin eral and state law is in effect physically impossible”). peals had previously formulated in an earlier case for when the FCC formulated in an earlier case peals had previously exception: (1) regulation under the impossibility may preempt state and intrastate as- regulated has both interstate “the matter to be a valid federal preemption is necessary to protect pects,” (2) “[FCC] and (3) “state regulation would regulatory objective,” cess service as an information service, any application of the conflict cess service as an information service, on the validity of FCC’s exercise preemption doctrine necessarily rests to regulate information services. of its Title I ancillary jurisdiction Serv. Comm’n Corp. cise by the ing Stated differently, as the D.C. Circuit recognized in Stated differently, as the D.C. Circuit 78 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 38 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 44 Side B 12/15/2020 11:16:45 12/15/2020 B 44 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 45 Side A 12/15/2020 11:16:45 79 Chev- An agency 190 191 But as the D.C. 194 Here, the stated pol- regulated, and in that event 193 regulate.”). un to CASTING A BROAD NET CASTING , Geier v. Am. Honda Motor Co., 529 U.S. 861, 874-75 (2000). , Geier v. Am. Honda Motor Co., 529 U.S. See, e.g. Ark. Elec. Coop. Corp., v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 384 City of Arlington, Tex. v. FCC, 569 U.S. 290, 306 (2013) (stating “for City of Arlington, Tex. v. FCC, 569 U.S. 290, To be sure, the United States Supreme Court has To be sure, the United States See see also 192 As explained above, because the agency failed to tie its express because the agency failed to As explained above, authority” to displace But the FCC also relies on an “independent deference to apply, the agency must have received congressional authority to deter- deference to apply, the agency must have 194. Telecommunications Act, Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified at 192. Restoring Internet Freedom, 33 FCC Rcd. at 431. 193. Bethlehem Steel Co. v. N.Y. State Labor Relations Bd., 330 U.S. 767, 773-74 191. As an additional matter of note, the FCC’s preemption action here was not the 190. M K must, before any inquiry can proceed, have adequate and proper stat- inquiry can proceed, have adequate must, before any act. act in the manner it purports to utory authority to has no power to act without authority granted to it by Congress, espe- without authority granted to it has no power to act and any second-order legislative decision-making cially concerning Clause power to exercising the federal Supremacy even more so, when in a broad and categorical manner. preempt state law icy of the Telecommunications Act as cited by the FCC in its 2018 icy of the Telecommunications Act and competitive free market that Order is to “preserve the vibrant and other interactive computer ser- presently exists for the internet regulation.” vices, unfettered by Federal or State would have as much pre-emptive force as a decision 47 U.S.C. § 230(b)(2) (2018)). The agency acted instead in this instance to categorically preempt (by regulation) state The agency acted instead in this instance net neutrality laws to foreclose the then-impending possibility that the states would enact their own net neutrality laws and regulations. Even so, because the FCC in this instance as an exercise of its ancillary Title I authority must tie any affirmative regula- tion to some pre-existing statutory mandate or duty, it is not clear that even if such in a state law existed, the FCC could bring these conflict preemption principles to bear rulemaking or regulatory setting, regardless. Instead, the agency would pursue litiga- tion and judicial avenues to preclude the state law from taking effect and to “enforce” the Supremacy Clause principles. This approach avoids bringing into the mix separa- tions-of-powers issues alongside federalism concerns and principles, as is the case here. (1947); (1983) (“[A] federal decision to forgo regulation in a given area may imply an authorita- tive federal determination that the area is best left established the basic principle that when Congress “fail[s] . . . affirma- established the basic principle that the resulting scheme “takes on tively to exercise their full authority,” regulation is appropriate or ap- the character of a ruling that no such statute.” proved pursuant to the policy of the preemption provision to any congressionally-delegated authority to any congressionally-delegated preemption provision § a broad grant of authority in (other than, arguably, to properly 151) in this man- authority, it cannot validly regulate exercise its ancillary impossibility exception to tradi- ner even under the auspice of the tional preemption law. Congress itself adopted the deregu- state regulations on the basis that concerning information ser- latory framework of non-regulation vices. ron mine the particular manner at issue in the particular matter adopted”). mine the particular manner at issue in the principles where it did not identify any quintessential exercise of conflict preemption conflicts with a valid and lawful regulation specific state law or regulation that actively from the agency. 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 39 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 45 Side A 12/15/2020 11:16:45 12/15/2020 A 45 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 45 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 Specifically, § 160(e) 196 , when dealing with an action by , when dealing with In turn § 160(a) provides FCC stat- 197 Thus, to exercise any independent author- Thus, to exercise Mozilla Corp. 195 CREIGHTON LAW REVIEW , 940 F.3d at 78. The agency argued: such congressional or federal policy is not enough. such congressional or federal policy 198 . Mozilla Corp. Id To mean anything, then, this standard must apply even when the To mean anything, then, this standard Finally, the FCC relied on § 401 of the Telecommunications Act, 196. Restoring Internet Freedom, 33 FCC Rcd. at 432. 197. 47 U.S.C. §198. 160(a), (e) (2018). 195. Circuit re-affirmed in Circuit re-affirmed provides: “A State commission may not continue to apply or enforce any provision of this Act . . . that the [FCC] has determined to forbear from applying” under § 160(a). an administrative agency, the initial question must necessarily be agency, the initial question must an administrative its congressionally- is acting within the confines of whether the agency preemptive actions. especially when considering delegated authority, that agencies are law is the principle At the core of administrative author- depositories of legislative decision-making first and foremost ity. basic “First, as a matter of both As the appellate court recognized: the States’ laws federalism, the power to preempt agency law and by Congress.must be conferred of self- It cannot be a mere byproduct made agency policy.” utorily delegated authority to make forbearance determinations re- utorily delegated authority to make forbearance determinations a garding “any regulation or any provision of this Act to telecommunications carrier or telecommunications service” upon cer- tain findings. ity—preemptive or not, although as I argue especially when the result authority—theis preemption of state law or regulatory agency must delegated it by Congress. be acting within or under the authority even when expressly stating as agency is ostensibly pursuing (and or federal policy.much) what is otherwise clear congressional There is of administrative law.no exception to this basic principle Any positive of law, whether in pursuit of fed- regulations or actions with the force or not, are valid agency actions eral regulatory objectives or policies the agency the power or authority only where Congress has delegated question.to promulgate the rule or order in As explained above, be- here is an exercise of ancillary au- cause the FCC’s Title I authority a regulation that is thority, simply pursuing or promulgating Thus, it should not be sufficient for an agency to wield the federal Thus, it should not be sufficient face of a federal statutory scheme power of preemption even in the approach which may be that suggests a de-regulation or laissez-faire regulation to the contrary, without undermined by individual state ground such preemption. statutory authority in which to otherwise adding 47 U.S.C. § 160, to support the agency’s preemption authority regarding broadband internet access services. consistent with 80 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 40 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 45 Side B 12/15/2020 11:16:45 12/15/2020 B 45 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 46 Side A 12/15/2020 11:16:45 81 202 In other Something 201 203 at 95. Id. The court of appeals also argues, in part, the Supreme 200 199 Mozilla , 406 F.3d at 708 (rejecting the argument that CASTING A BROAD NET CASTING 940 F.3d at 80 (discussing that the Commission “just cannot , 940 F.3d at 74. see also Am. Lib. Ass’n at 79; . at 96 (Williams, J., concurring in part, dissenting in part). In addition, the Mozilla Corp., Id. Mozilla Corp. Id It would be incongruous if state and local regulation were if state and local regulation It would be incongruous from a the Commission decides to forbear preempted when otherwise apply, or if the Commission provision that would not pre- and then forbears from it, but adopts a regulation Commission determines that a requirement empted when the the first place. does not apply in In vacating the preemption provision on the grounds that the In vacating the preemption provision The preemptive authority within §The preemptive authority agency 160(e) is clear had the 202. 201. 203. 199. Restoring Internet Freedom, 33 FCC Rcd. at 432. 200. M K words, even under § 160(e) and the Title II sphere of regulatory au- making preemptive deter- thority, it is not the FCC that is necessarily itself that has made a preemptive minations but instead it is Congress legislative decision-making. determination as an exercise of first-order of statutory authority” to do so, agency lacked any “lawful source less is allowed. Court has recognized that For example, the Supreme when Congress “fail[s] . . . affirmatively to exercise their full author- no ity,” the resulting scheme “takes on the character of a ruling that noted that § 160(e) itself is not a delegation of preemptive authority to the agency authority to forbear the agency but rather it only grants Title II with Congress “preemp- from particular regulations under effect of such decision. tively” determining the preemptive Court has made clear that express grants of agency authority to pre- Court has made clear that express requirement. empt state law is not always a necessary the FCC “possesses plenary authority to act within a given area simply because Con- gress has endowed it with some authority to act in that area”). completely disavow Title II with one hand while still clinging to Title II forbearance authority with the other”). dissent argues as an initial matter that the three-part impossibility test formulated by dissent argues as an initial matter that the three-part impossibility test formulated the D.C. Circuit itself was satisfied in this instance. retained the telecommunications service-classification of broadband service-classification retained the telecommunications internet access service. Congress In the realm of Title II regulation, to make forbear- (1) FCC discretionary authority expressly sets forth of state law. and (2) the requisite preemption ance determinations the agency’s classification determi- But as the D.C. Circuit recognized, out of the Title II realm necessarily nation taking broadband internet removes such forbearance authority. the majority re-emphasized a foundational tenant of administrative the majority re-emphasized a foundational to act only under such authority as law: that agencies are empowered including in preempting state law. granted by Congress and no more, Order illustrates, in practice (as is But as the reasoning in the 2018 is not a simple black and white more often than not the case) this matter. Indeed, as the dissent in 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 41 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 46 Side A 12/15/2020 11:16:45 12/15/2020 A 46 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 46 Side B 12/15/2020 11:16:45 M K ., C Y Re- [Vol. 54 210 regulate: In review- to 205 211 , the Eighth Cir- Minnesota Public regulated, and in that un , 483 F.3d at 580 (noting, dissent argued for a regulate.”). to see also Ark. Elec. Coop. Corp the Supreme Court found that the Supreme Court Mozilla Corp. 206 , Additionally, just five years prior to Additionally, just five years prior the , 483 F.3d at 577-82. 207 209 at 66-67. . , , 461 U.S. at 384 (noting the statutory scheme at issue, 330 U.S. at 773-74 (1947); 208 , 486 U.S see also Minn. Pub. Utilities Comm’n CREIGHTON LAW REVIEW 940 F.3d at 97 (Williams, J., concurring in part, dissenting in , the Supreme Court stated the broad principle that , the Supreme Court stated the broad regulate are just as effective as a decision regulate are just as effective as a Additionally, in an earlier case concerning the FCC’s Additionally, in Minnesota Public Utilities Commission 204 regulate.” not to to City of New York v. FCC City of New York City of New York Ark. Elec. Coop. Corp. Mozilla Corp., Minn. Pub. Utilities Comm’n Bethlehem Steel Co., Similar to the Eighth Circuit’s 2007 opinion in Similar to the Eighth Circuit’s 2007 In regulated, . . . that event would have as much pre-emptive force as a regulated, . . . that event would have 209. 483 F.3d 570 (8th Cir. 2007). 210. 205. City of New York v. FCC, 486 U.S. 57, 64 (1988) (quoting Fidelity Fed. Savings 206. 486 U.S. 57 (1988). 207. 208. 211. 204. 461 U.S. at 384 (“[A] federal decision to forgo regulation in a given area may imply an 461 U.S. at 384 (“[A] federal decision to forgo regulation in a given area may imply authoritative federal determination that the area is best left markably, in such regulation is appropriate or approved pursuant to the policy of appropriate or approved pursuant such regulation is the statute.” “because a federal decision to forgo regulation in a given area may “because a federal decision to forgo that the area is best left imply an authoritative factual determination cuit—in an FCC-promulgated order preempting state reviewing services using Voice over Internet regulation of telecommunication Protocol (“VoIP”)—engaged stan- in a simple arbitrary-and-capricious promulgation. dard of review of the agency’s preemption event would have as much pre-emptive force as a decision generally, “[c]ompetition and deregulation are valid federal interests the FCC may pro- tect through preemption of state regulation”). deferential review of the FCC’s action to preempt state law. deferential review of the FCC’s action & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 154 (1982)). Congress had delegated the FCC statutory authority to preempt state the FCC statutory authority Congress had delegated the broad power to cable television signals based on law in regulating and prescribe such restrictions and “make such rules and regulations to carry out the provisions of this conditions . . . as may be necessary the FCC had preempted such state chapter” and, importantly, where leading up to Congress’s enact- and local regulation for the ten years ing the Communications Act. the Federal Power Act, did not determine as a matter of policy that the rural power a cooperatives at the heart of the agency’s preemptive act should be left unregulated as matter of federal policy); part). decisions assertion of preemption authority in its regulation of cable television, authority in its regulation assertion of preemption is whether the that while the key inquiry the Court also recognized authority,” at the exercised its own delegated agency “has properly not depend on ex- regulation’s force does same time “a pre-emptive law.” authorization to displace state press congressional Utilities Commission v. FCC decision City of New York un 82 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 42 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 46 Side B 12/15/2020 11:16:45 12/15/2020 B 46 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 47 Side A 12/15/2020 11:16:45 , 83 The for the Charter 213 decision up- , the Eighth There, the that state a-vis a service , 529 U.S. 861, . 212 and dissent argues that Charter Advanced Servs. holding that because the Mozilla 216 , Charter Advanced Services 215 Minnesota Public Utilities Commission Minnesota Public Service Commission 217 On this basis, the CASTING A BROAD NET CASTING 214 ., 483 F.3d at 580). In , 940 F.3d at 104 (Williams, J., concurring in part, dissenting in at 579-80. at 580 (quoting Communications Reg., 19 FCC Rcd. 22404 (2004)). at 580-81 (quoting, in part, Geier v. Am. Honda Motor Co Id. Id. Id. Mozilla Corp. How a service is classified affects a state’s ability to regulate How a service is classified affects services are generally sub- the service. Telecommunications ject to “dual state and federal regulation.” By contrast, “any service conflicts with the state regulation of an information information services under federal policy of nonregulation [of that such regulation is pre- the Telecommunications Act],” so empted by federal law. The Eighth Circuit recently re-affirmed its reasoning in The Eighth Circuit recently re-affirmed 216. 903 F.3d 715 (8th Cir. 2018). 217. Charter Advanced Servs. (MN), LLC v. Lange, 903 F.3d 715, 718 (8th Cir. 215. 213. 214. 212. M K 903 F.3d at 719. ing the agency’s assertion of the impossibility exception under 47 assertion of the impossibility exception ing the agency’s U.S.C. § “informed Circuit deferred to the agency’s 152(b), the Eighth the intrastate and in both its determination that decision[-making]” of the service cannot be separated interstate aspects Eighth Circuit concluded the agency did not arbitrarily or capriciously the agency did not arbitrarily Eighth Circuit concluded service on the basis that it would preempt state regulation of VoIP or policies,” largely deferring to the “interfere with valid federal rules conflicts between state regulation agency’s “conclusions regarding the and federal policy.” preemptive effect of state regulation of information services. holding FCC preemption of VoIP regardless of the service’s classification as an informa- the tion service or telecommunications service “seems wholly incompatible with majority’s idea that there is no Commission preemptive authority vis-` located under Title I”). 2018) (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 375 (1986); then quoting Circuit relied on its earlier decision in regulation would interfere with federal rules or policies. regulation would state regula- if classified as an information service, FCC argued that “long-standing na- service would conflict with the tion of the VoIP and the agency’s of information services” tional policy of nonregulation providers. policy” for information service “market-oriented 883 (2000)). the 2018 Order’s adoption of a federal regulatory regime characterized the 2018 Order’s adoption of a federal services does not render pre- by deregulation for Title I information statutorily unauthorized as emption impossible (or, more accurately, an exercise of agency authority). VoIP service in issue (Spectrum Voice) is an “information service” VoIP service in issue (Spectrum state regulation of the service is under the Telecommunications Act, preempted: part) (asserting the Eighth Circuit’s Advanced Services (MN) LLC v. Lange Advanced Services (MN) LLC v. Minn. Pub. Util. Comm 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 43 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 47 Side A 12/15/2020 11:16:45 12/15/2020 A 47 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 47 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 , 486 U.S. at 66-67. As mentioned Neither should it be sufficient to 218 , the Supreme Court held the FCC had authority City of New York CREIGHTON LAW REVIEW City of New York v. FCC re-affirmed. as an independent or substantive When acting When dealing with preemption by an administrative agency— preemption by an administrative When dealing with The United States Supreme Court should emphasize that judicial The United States Supreme Court 218. In rather, and especially so, than Congress itself—therather, and especially of feder- principles alism and the separation of powers require a close and careful exami- of powers require a close alism and the separation as the majority in of the preemption action, nation of the validity above, the distinction between the less regulated “information services” and the more regulated “telecommunications services” is grounded in historic FCC practice. under the broad delegation of authority under § 4(i) of the Communications Act to pre- a empt state law on an issue for which Congress enacted the enabling statute “against background of federal [agency] pre-emption on this particular issue”; the FCC had “[f]or its the preceding 10 years . . . pre-empted such state and local . . . standards under broad delegation of authority . . . .” matter (not merely interpreting federal preemption statutes), agencies interpreting federal preemption matter (not merely as required limited to exercising delegated authority; like the FCC are of powers framework of the Constitution.by the separation Because Clause and of preemption under the Supremacy of the implications to accept an balance, courts should be hesitant the delicate federalism under only a broad delegated agency’s asserted authority to preempt or on a certain topic especially authority to act in a certain realm question to make first-level when Congress itself (entitled without as a function of its vested preemption decisions under the Constitution decision-making powers) must, lawmaking authority and legislative and manifest purpose to displace to preempt state law, indicate a clear state law. must—asreview of agency preemption decision-making with judicial review of any agency action—begin a “step-zero” inquiry: with some authority delegated by Con- whether the agency is acting under gress. for the sake of And where preemption of state law is concerned, framework under the separa- federalism and the basic institutional to do so must be clear from tion of powers, such power and authority required to make such determi- Congress; much as Congress is itself nations clear in statutory preemption. The Court should also clarify under Title I authority—underthat even if the agency was not acting not enough for regulatory action which congressional policy is simply an existing statutorily mandated but requires a regulation tied to duty—as matter it should not be enough for agencies to in- a general federal policy in preempting state dependently undertake to pursue laws, either. to the agency the author- Unless Congress has delegated ity to regulate and to preempt state law, it cannot so act with the force of law. to the FCC, pursuing Under this statutory scheme applicable congressional policy is not enough to exercise Title I authority as the FCC has undertaken to do here. 84 Mozilla \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 44 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 47 Side B 12/15/2020 11:16:45 12/15/2020 B 47 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 48 Side A 12/15/2020 11:16:45 85 220 at 69- See id. This would, 219 , 940 F.3d 1. Importantly, how- While a necessary federal power, the While a necessary federal power, 221 CASTING A BROAD NET CASTING See generally Mozilla Corp. . art. VI, cl. 2. ONST FERC v. Mississippi, 456 U.S. 742, 788 (1982) (O’Connor, J., concurring in In sum, the courts in judicial review should ensure that when in judicial review should ensure In sum, the courts Because of its excessive pervasiveness, how the internet is regu- Because of its excessive pervasiveness, see also 220. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissent- 221. U.S. C 219. Ultimately, the D.C. Circuit agreed and vacated FCC’s preemption provision on M K exercise the power of preemption, even if the general federal scheme of of preemption, even if the general exercise the power for, as a policy indicate or arguably provide support regulation would regulating the in- or market-based approach to matter, a laissez-faire service. ternet as an information of federalism FCC invoke the foundational principles agencies like the between the the balance of regulatory authority and act to influence federal power of the Supremacy Clause by the dual sovereigns under the inherently lim- must act under and within preemption, agencies to it by Congress.ited power delegated like Administrative agencies regulatory authority to preempt the FCC should not be able to derive all state laws regulating broadband state law and foreclose any and internet—in the States certainly have an intimate and impor- which tant interest—in reasoning that since a net neutrality-style by simply broadband internet provid- it has no jurisdiction to regulate interstate have jurisdiction to regulate intra- ers in this manner, states do not in that same way. state broadband internet providers 79 (Williams, J., concurring in part and dissenting in part). If nothing else, the FCC’s an 2018 Order itself illustrates the need to clarify the limits to federal agency power in of era of increasing administrative agency reach at the outer limits of its realm authority. ing); simply, be inconsistent with the administrative law framework that simply, be inconsistent with the and constitutional design. exists within the broader institutional V. CONCLUSION a mobilizing and pressing politi- lated (or not) will continue to become levels of government. While the cal issue across the federal and state centered around broadband ISPs’ worthwhile regulatory policy debate it is important to remember gatekeeper role and influence continues, . . . [to] try novel social the role the states can play as “laborator[ies] risk to the rest of the country.” and economic experiments without ever, the preemption issue is far from settled, as the dissent makes clear. power of preemption under the Supremacy Clause must be wielded part and dissenting in part) (stating, “[c]ourts . . . frequently have recognized that the part and dissenting in part) (stating, “[c]ourts . . . frequently have recognized that 50 states serve as laboratories for the development of new social, economic, and political ideas”). much the same grounds. But this notion must necessarily exist under the framework estab- But this notion must necessarily dictates that in conflict, state lished by the Supremacy Clause which law must cede to federal law. 2020] \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 45 9-DEC-20 15:38 C Y 42655-cre_54-1 Sheet No. 48 Side A 12/15/2020 11:16:45 12/15/2020 A 48 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 48 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 re-re-re- CREIGHTON LAW REVIEW broadband internet as a telecommunications service in order broadband internet as a telecommunications Under the current administration, the FCC has wielded this au- administration, the FCC has wielded Under the current with at least intentionality, and even more so when wielded by an ad- and even more so when with at least intentionality, rather than Congress. ministrative agency broadband internet a market-based framework on thority to impose and to foreclose on the whole of the United States access regulation net neutrality scheme.States from an alternative in this in- While Circuit vacated the action failed after the D.C. stance the regulatory provision, it remains instructive.Order’s preemption the hyper- With and the regula- hyper-politicization of net neutrality partisanship and how the FCC under today, it is not hard to imagine tion of the internet again change course and a different administration may yet to pave the way to impose affirmative net neutrality requirements. to pave the way to impose affirmative will again wield the power of And it is not unlikely that the agency preemption. sense of consistency When this occurs, to establish some ensure that the agency is prop- within this regulatory arena, we must delegated to it, in some way, by erly exercising a preemptive authority Congress. given the statutory Where this authority is unclear to demonstrate a willingness scheme, agencies like the FCC continue preempt state law based only on and desire to expand their reach and and in the interest of congres- general or broad grants of authority sional policy. When asked, the courts should carefully review such and re-affirm the most basic consti- agency action, rein in this trend, with administrative law.tutional principles at the intersection If pol- of general and undefined regulatory icy statements and broad grants agency to preempt state authority is enough for an administrative both the affirmative regulations ad- laws, there is no effective limit to let alone the administrative ministrative agencies can promulgate, preemption of state law. classify 86 \\jciprod01\productn\C\CRE\54-1\CRE103.txt unknown Seq: 46 9-DEC-20 15:38 42655-cre_54-1 Sheet No. 48 Side B 12/15/2020 11:16:45 12/15/2020 B 48 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 49 Side A 12/15/2020 11:16:45 R R R R R R R R R R R R R R 87 ...... 97 ...... 94 ...... 100 ...... 92 ...... 99 ...... 93 ...... 90 LETCHER F ...... 97 RIAN ...... 103 ...... 88 B ...... 87 ...... 101 ...... 105 WEALTH TAX ...... 97 MPOST AX AX I T T UTY OR XCISE NCOME CON OR CONSTITUTIONAL: 1. The Tax on Use 2. The Corporate Privilege 3. The Wealth Tax Is Not an Excise A. E B. I C. D This Article is an in-depth analysis of the wealth tax proposals in-depth analysis of the wealth This Article is an During the 2020 election season, there were quite a few proposals AN ANALYSIS OF THE “NET WORTH” AN ANALYSIS I. INTRODUCTION V. TAX THE CONSTITUTIONAL II. THE PROPOSALS IV. COMPLIANCE CONSTITUTIONAL VI. UNCONSTITUTIONAL DIRECT TAX THE III. IS A WEALTH TAX? WHAT VII. INDIRECT TAXES THE CONSTITUTIONAL VIII. CONCLUSION M K I. INTRODUCTION on how to narrow the gap between the ultra-rich and middle- to lower- class citizens. not on changing the tax to One such proposal focuses income, but on taxing wealth. Tax” proposed The “Ultra-Millionaire by former Democratic presidential candidate Senator Elizabeth War- presented by former presidential candidates Bernie Sanders and Eliza- presented by former presidential candidates could be considered consti- beth Warren to determine if their proposals tutional. tax based on “net worth,” this As both plans propose a wealth a court or the tax code would most Article attempts to determine how tax purposes.likely define this essential term for The proposals are States legal history, to histori- then compared, in the context of United federal taxes.cally constitutional and unconstitutional Although the as it sees fit, a court would most tax code is free to define any term tax is more comparable to a “prop- likely find that a “net worth” wealth therefore, unconstitutional as pro- erty tax,” i.e., a direct tax, and is, posed by the former presidential candidates. ABSTRACT \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 1 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 49 Side A 12/15/2020 11:16:45 12/15/2020 A 49 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 49 Side B 12/15/2020 11:16:45 M K C Y The 2 [Vol. 54 Under Warren’s 4 , https://elizabethwarren.com/ EMOCRATS D , https://berniesanders.com/issues/tax-extreme- note 2. note 1. ARREN ERNIE supra , , B supra , W The website indicates this would apply “only The website indicates this would , 5 3 CREIGHTON LAW REVIEW Former Democratic presidential candidate Senator Former Democratic 1 6 Ultra-Millionaire Tax Tax on Extreme Wealth Ultra-Millionaire Tax Id. Id. Tax on Extreme Wealth The “Ultra-Millionaire Tax,” proposed by former Democratic pres- The “Ultra-Millionaire Tax,” proposed Obviously, both former presidential candidates believe a wealth Former Democratic presidential candidate Bernie Sanders’s plan Former Democratic presidential candidate for a married couple. a 1% tax on net worth above $32 million $32.5 million would pay a That means a married couple with wealth tax of just $5,000. The tax rate would increase to 2 million, 3 percent from percent on net worth from $50 to $250 $500 million to $1 bil- $250 to $500 million, 4 percent from 6 percent from $2.5 to lion, 5 percent from $1 to $2.5 billion, billion, and 8 percent on $5 billion, 7 percent from $5 to $10 wealth over $10 billion. These brackets are halved for singles. 2. 3. 4. 1. 5. 6. idea of taxing wealth has become a popular one, but would a tax on has become a popular one, idea of taxing wealth pass constitu- a household’s or person’s net worth wealth based on tional requirements? Perhaps. tax The constitutionality of a wealth “net worth.” But in how a court construes the term would depend on tax would probably not be constitutional. general, a wealth II. THE PROPOSALS is one of the more popular idential candidate Elizabeth Warren, wealth tax proposals. On her website she urges a tax on “the wealth of the richest Americans.” ren is one such plan where she proposes to tax “the wealth of the rich- where she proposes to tax “the ren is one such plan est Americans.” plan, these “[h]ouseholds would pay an annual 2% tax on every dollar plan, these “[h]ouseholds would pay a 6% tax on every dollar of net of net worth above $50 million and worth above $1 billion.” plans/ultra-millionaire-tax (last visited Oct. 15, 2020) (noting that the “plan was origi- nally released during Senator Elizabeth Warren’s presidential campaign”). wealth (last visited Oct. 15, 2020). to households with a net worth of $50 million or more—roughlyto households with a net worth of the the top 0.1%.” wealthiest 75,000 households, or Bernie Sanders has a similar plan for taxing “extreme wealth,” which a similar plan for taxing “extreme Bernie Sanders has proposal. named his “Tax on Extreme Wealth” he has creatively tax would be constitutional. Warren’s website, she states On Senator of that “[l]egal experts have submitted two separate letters in support for taxing “extreme wealth” is similar. His plan, titled the “Tax on Extreme Wealth,” proposes: 88 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 2 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 49 Side B 12/15/2020 11:16:45 12/15/2020 B 49 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 50 Side A 12/15/2020 11:16:45 10 89 U.S. 8 He is also see also 9 (Sept. 20, 2011), https:// IMES However, it does not seem However, it does 7 (9th ed. 2009). , L.A. T Historically it did have ties to slav- 11 note 2 (quoting Bruce Ackerman & Anne Alstott, note 1. ICTIONARY supra D supra , , AW L S ’ CON OR CONSTITUTIONAL CON OR Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895). LACK , B Chase Nat’l Bank v. United States, 278 U.S. 327, 339 (1929) (upholding an Since 1916, we have taxed the inherited wealth of the taxed the inherited wealth Since 1916, we have . . . . 4 of the Constitution] “. . . [Article I, Section 9, Clause has consistently been “Given its origins, this provision Tax on Extreme Wealth See See generally Head Tax Ultra-Millionaire Tax But, as will be explained further, a wealth tax is not a head tax . amend. XVI. richest people in this country through the estate tax. this country through the estate richest people in For from we have taxed investment income more than 100 years, dividends.capital gains and ine- In order to reduce extreme on the also establish a tax on the net worth quality, we must top 0.1 percent. slave-holding South, and was part of a compromise with the from imposing a “head its intention was to prevent the North not be apportioned equally tax” on slaves because this could among the population of all the states. Supreme Court, which has construed very narrowly by the levies to be within its found only head taxes and real estate unlikely that the scope[.] Given this history, it is extremely compromise with slav- justices will cite the founders’ original cause of economic equal- ery to bar a tax that would serve the Roberts court may be ity and democratic legitimacy. The reactionary as all that.” conservative, but it is not quite as Senator Sanders is correct in some aspects.Senator Sanders is correct in some An estate tax and an A “head tax”—also “per capita tax, or known as a capitation, 12 9. 8. 7. 12. Veazie Bank v. Fenno, 75 U.S. 533 (8 Wall.) 543 (1869). 11. 10. ONST M K the constitutionality of this proposal.” the constitutionality C correct that real estate taxes have been construed as direct taxes. correct that real estate taxes have www.latimes.com/archives/la-xpm-2011-sep-20-la-oe-ackerman-wealth-tax-20110920- story.html. that these letters have been published as no trace of them could be have been published as no trace that these letters found. other hand, has released an analysis Senator Sanders, on the a wealth tax would be constitutional.of why he thinks Sand- Senator ers states: ery. estate tax); New York Trust Co. v. Eisner, 256 U.S. 345 (1921) (same); Springer v. estate tax); New York Trust Co. v. Eisner, 256 U.S. 345 (1921) (same); Springer United States, 102 U.S. 586 (1881) (upholding a federal income tax); and therefore has no historical ties to slavery. A wealth tax is more income tax have both been upheld as constitutional taxes. income tax have both been upheld Why (and how) to tax the super-rich However, his analysis is only partially correct. However, his analysis is only partially polltax[—]is fixed tax levied on each person within a jurisdiction,’ ‘[a] regardless of income or worth.” 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 3 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 50 Side A 12/15/2020 11:16:45 12/15/2020 A 50 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 50 Side B 12/15/2020 11:16:45 M K C Y 18 A 14 . 79, 3 NV [Vol. 54 I N ’ AX , 36 J. T The Court seems to note 1 (providing a two per- 17 supra , note 2 (providing a graduated tax rate New Jersey Realty Title Ins. Co. In supra , 15 the Court had to use the plaintiff’s net the Court had to use the plaintiff’s Also further discussed, estate taxes and Also further discussed, 16 , 13 Ultra-Millionaire Tax Is a Tax on Wealth Constitutional? CREIGHTON LAW REVIEW , 338 U.S. at 678 n.1 (Black, J., dissenting). Tax on Extreme Wealth , See, e.g. N.J. Realty When determining the amount of a wealth tax, the most probable When determining the amount of The “net worth method” from tax law is a principle applied by the The “net worth method” from tax As already stated, the two most popular wealth tax proposals the two most popular wealth As already stated, 14. 15. 673- New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U.S. 665, 16. 338 U.S. 665 (1950). 17. 18. Holland v. United States, 348 U.S. 121, 126 (1954). 13. Erik M. Jensen, wealth tax, as has been proposed, is a taxation of net worth.wealth tax, as has been proposed, There- tax as constitutional or unconsti- fore, the characterization of a wealth or interpretation of this essential tutional hangs on the definition term. forth with a defini- Unfortunately, neither candidate has come tax code provide a definition for this tion for “net worth,” nor does the term. sources that could be There are, however, definitions from other applied to a tax on net worth. uses assets and liabilities.definition of “net worth” probably The net worth in a tax case involv- United States Supreme Court defined ing the Division of Tax Appeals. (2019). similar to a property tax which “[the Founders] thought . . . danger- tax which “[the Founders] thought similar to a property to use such taxes in to constrain Congress’s power ous, and . . . wanted ordinary circumstances.” imply that the value of the assets used was the fair market value of imply that the value of the assets the assets. However, this is not always the case. courts that uses a taxpayer’s net worth to find his actual income. cent “annual tax on household net worth between $50 million and $1 billion” and a four percent “annual Billionaire Surtax . . . on household net worth above $1 billion”). 74 (1950). of one percent “on net worth above $32 million for a married couple” up to eight percent “on wealth over $10 billion”); worth to determine a state tax levied on the plaintiff’s personal prop- worth to determine a state tax levied erty. is found by “sub- Here the Court explained that net worth of assets.” tracting liabilities from the value income taxes are not wealth taxes.income taxes are been con- The term direct tax has a direct tax encom- as stated by Senator Sanders, but strued narrowly, taxes. simply head taxes and real estate passes more than III. IS A WEALTH TAX? WHAT Sanders and Eliza- presidential candidates Bernie come from former beth Warren. Both of these plans evaluate a person’s or household’s threshold.net worth and gauge it against a certain If the net worth is at a certain set percentage. above that threshold, it is taxed v. Division of Tax Appeals This is only used when a taxpayer has been accused of tax evasion to This is only used when a taxpayer has been accused of tax evasion 90 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 4 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 50 Side B 12/15/2020 11:16:45 12/15/2020 B 50 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 51 Side A 12/15/2020 11:16:45 EB- 91 In man -W 20 QUITABLE E ERRIAM OR , M . F and a wealth TR 25 C Net Worth (Mar. 31, 2019), https:// This is because “the net This is because ASHINGTON 21 , W When applying the net worth When applying NVESTOPEDIA 19 , I Wealth Taxation: An Introduction to Net Worth Taxes Net Worth Why does this matter? Because net worth is 24 CON OR CONSTITUTIONAL CON OR Additionally, even though the presidential candi- Additionally, even though the presidential 23 , 348 U.S. at 126. , Greg Leiserson, , 420 F.2d at 285. Akhilesh Ganti, Camien v. Comm’r, 420 F.2d 283, 285 (8th Cir. 1970) (considering cost, not STER . at 125. See, e.g. Holland Id See Camien See 22 (Jan. 23, 2019), https://equitablegrowth.org/wealth-taxation-an-introduction- It bears mentioning that if Congress were to pass a statute au- It bears mentioning that if Congress For purposes of this analysis, whether the first method, using the analysis, whether the first method, For purposes of this , https://www.merriam-webster.com/legal/net%20worth (last visited Oct. 16, 2020) 20. 23. 22. 21. 25. U.S. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 24. 19. ROWTH M K find discrepancies in his tax return. find discrepancies cost paid for all the net worth is defined as the the net worth method, individual’s liabilities. assets minus the tax levies a tax on these assets solely because of a household’s posses- tax levies a tax on these assets solely sion of those assets. If a wealth tax is a tax on the valuation or the it stands to reason that a wealth tax mere possession of property, then is a tax levied on property. free to define the term “net worth” thorizing a wealth tax, Congress is and it does not need to conform to however it pleases for tax purposes of that term.the commonly understood definition For example, Mer- as “human, individual—some-riam-Webster defines the word person by those who prefer to avoid times used in combination especially www.investopedia.com/terms/n/networth.asp (“Net worth is the value of the assets a www.investopedia.com/terms/n/networth.asp (“Net worth is the value of the assets person or corporation owns, minus the liabilities they owe.”); worth method is a means of reconstructing income, [therefore] assets a means of reconstructing income, worth method is current market at their cost rather than at their are generally listed value.” method, a court will look at a taxpayer’s net worth at the beginning of look at a taxpayer’s net worth method, a court will year to determine and again at the end of the taxable the taxable year his tax return. more than was reported on if his wealth increased found by a valuation of assets. Assets are property, dates themselves have not explicitly stated that net worth is found by dates themselves have not explicitly many of their proponents do define subtracting liabilities from assets, net worth this way. market value, to determine net worth). to-net-worth-taxes-and-how-one-might-work-in-the-u-s (providing an example of an ar- to-net-worth-taxes-and-how-one-might-work-in-the-u-s (providing an example of an ticle that uses the terms “net worth” and wealth synonymously to say that a family’s wealth is the total value of its assets less its debts). 666, 675 (1999). fair market value, or the second method, using the purchase price of fair market value, or the second net worth, is not all that impor- the asset, is used to find a person’s tant.net worth in law and ac- The generally accepted definition of however that value is determined, counting is the value of the assets, minus liabilities. (defining “net worth” as “the excess of the value of assets over liabilities”). and How One Might Work In The United States G 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 5 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 51 Side A 12/15/2020 11:16:45 12/15/2020 A 51 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 51 Side B 12/15/2020 11:16:45 M K C Y then 28 [Vol. 54 the Constitu- does 251-52 (1990). But this is not the defini- But this is not the 26 MERICA A The U.S. has a long history of this , states: 30 , https://www.merriam-webster.com/dictionary/per EMPTING OF T EBSTER HE -W , T CREIGHTON LAW REVIEW Therefore, if Congress were to use a definition of Therefore, if Congress 29 ORK . pmbl. . art. V. 27 ERRIAM H. B , M ONST ONST The Tempting of America OBERT Person The dead, and unrepresentative, men who enacted our Bill of The dead, and unrepresentative, men not thereby forbid us, the Rights and the . . . amendments did living, to add new freedoms. We remain entirely free to cre- we want by constitutional ate all the additional freedoms and the nation has done amendment or by simple legislation, so frequently. Although neither candidate has advocated for non-constitutional Although neither candidate has advocated Just because the rules were written by men that are no longer Just because the rules were written 30. U.S. C 27. I.R.C. §28. 7701(a)(1) (2020). U.S. C 29. R 26. should not the power to govern come from those who are currently should not the power to govern being governed? If the people want a wealth tax, should not the peo- tax?ple simply be able to pass a wealth It is true that the Constitu- this does not mean the Constitution tion’s framers are long gone, but powers.should no longer constrain governmental Robert H. Bork, in his book in compounds applicable to both sexes.” in compounds applicable tion have the power to constrain the government?tion have the power to constrain the If the power to gov- of the United States,” ern is derived from “We the People tion of person found in the Internal Revenue Code (“IRC”). in the Internal Revenue Code tion of person found The IRC to mean and in- term “person” shall be construed states that “[t]he company a trust, estate, partnership, association, clude an individual, or corporation.” implicit ratification. the Constitution, and those “We did not adopt who did are dead and gone . . . . [I]t is only through a history of contin- uing assent or acquiescence that the [Constitution] could become son (last visited Oct. 15, 2020). net worth that did not involve the valuation or ownership of assets, not involve the valuation or ownership net worth that did property. not be considered a tax on i.e., property, it would IV. COMPLIANCE CONSTITUTIONAL to include why all branches of the compliance, it would be prudent and should be constrained by the United States government would U.S. Constitution. The question is an obvious one: with us or may not have represented the population at large, does not with us or may not have represented mean the rules do not still apply. By preserving the Constitution as it people implicitly ratify it through has been for hundreds of years, the their inaction. is no longer applica- If a provision of the Constitution ble, the people have the power to supersede or discard that provision through the amendment process. 92 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 6 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 51 Side B 12/15/2020 11:16:45 12/15/2020 B 51 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 52 Side A 12/15/2020 11:16:45 39 93 , 60 B.U. L. Under this con- 37 As the people con- definition of “direct 32 legal (Mar. 27, 2019), https://www.investo § 9, cl. 4. Id. But what is a direct tax? The most gen- NVESTOPEDIA , I 36 38 CON OR CONSTITUTIONAL CON OR Direct Tax note 13, at 5. note 13, at 3. The Misconceived Quest for the Original Understanding . art. I, § 8, cl. 1. . art. I, § 2, cl. 3; . amend. XVI. supra supra ONST ONST ONST 40 Additionally, Section 2 and Section 9 of the same article Additionally, Section 2 and Section However, this provision only allows “Duties, Imposts, and However, this provision only allows Therefore, without apportionment, a direct tax is not al- Therefore, without apportionment, . 34 Through the history of the U.S. the people have consistently of the U.S. the people have Through the history 33 Id 35 31 Article I, Section 8 of the Constitution gives the federal govern- 8 of the Constitution gives the Article I, Section Today, the Sixteenth Amendment allows an income tax to be lev- Today, the Sixteenth Amendment is difficult.[E]nacting a workable direct tax That was the founders’ intention. They thought direct taxes were danger- ous, and they wanted to constrain Congress’s power to use . 204 (1980). 38.of Indep. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895); Nat’l Fed’n 39. U.S. C 36. Jensen, 37. Julia Kagan, 34. 40. Jensen, 35. U.S. C 32. United States v. Butler, 297 U.S. 1, 53 (1936). 33. U.S. C 31. Paul Brest, EV M K law.” R struction, a federal direct tax is a tax paid directly from a taxpayer to struction, a federal direct tax is a the federal government. But this is not the tinue to implicitly ratify the Constitution as the codification of the ratify the Constitution as the tinue to implicitly to constrain the constrains and will continue people’s will, it therefore government. V. TAX THE CONSTITUTIONAL the general welfare of the United ment the power to collect taxes for States. tax” as interpreted in the Constitution. The United States Supreme a direct tax is simply a property Court has held more than once that tax or an income tax. pedia.com/terms/d/directtax.asp. Bus. v. Sebelius, 567 U.S. 519 (2012). erally understood definition of a direct tax is a “tax paid directly by an erally understood definition of a direct imposing entity.” individual or organization to the prohibit direct taxes without being apportioned among the several prohibit direct taxes without being states. Excises. lowed by the Constitution. turned to the Constitution as the “supreme law of the land [because it as the “supreme law of turned to the Constitution established by the people.” was] ordained and ied by the federal government free from the apportionment require- ied by the federal government free is still considered a direct tax. ment despite the fact that it Apportionment among the states is understood to mean that each Apportionment among the states the tax due to the federal govern- state pays the same percentage of population that lives inside its ment as the percentage of the U.S. state lines. 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 7 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 52 Side A 12/15/2020 11:16:45 12/15/2020 A 52 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 52 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 45 41 While this would make sense, this is Nor is it likely that a court would find Nor is it likely that a court would 46 43 A federal wealth tax based on the net worth A federal wealth tax based on the It probably would not be upheld as an income It probably would not be upheld 44 CREIGHTON LAW REVIEW 42 note 37. Section VII(C); Camps Newfound/Owatonna v. Town of Harrison, 520 supra , 157 U.S. at 579-81. . (emphasis omitted) (citations omitted). Id See infra Pollock impossible. That was the point. such taxes in ordinary circumstances.such taxes in ordinary As a result, the Con- the states apportioning a direct tax among stitution requires on the basis of population. The taxpayers in a state having of national population must pay one-tenth one-tenth of the under a direct tax, a state with one-twenti- the total collected of the population must pay one-twentieth eth of the national total, and so on—regardless of how the tax base is distributed across the country. apportionment requirement makes The tax often technically—andimposition of a direct politically— Therefore, a federal wealth tax must be a duty or impost, an in- wealth tax must be a duty or Therefore, a federal for a federal wealth Unfortunately for those who are campaigning Over the past 230 years since the Constitution was ratified, the Over the past 230 years since the 43. United States v. Burke, 504 U.S. 229, 233 (1992). 44. Mc- Chase Nat’l Bank v. United States, 278 U.S. 327, 339 (1929); Bromley v. 45. 46. Kagan, 42. 41. not the definition that has ever been accepted by the United States Supreme Court. after the Constitution was In 1796, just seven years ratified, the Court found itself interpreting the meaning of the term a federal wealth tax to be an excise, such as an estate or gift tax, be- a federal wealth tax to be an excise, the use or transfer of property but cause a wealth tax does not tax simply its possession. of a person or household is most likely a tax on the ownership of prop- of a person or household is most likely tax. erty and is, therefore, a direct property tax because it does not tax the accession to wealth but merely the own- tax because it does not tax the accession ership or valuation of wealth. U.S. 564, 637-38 (1997). Caughn, 280 U.S. 124, 138 (1929); Fernandez v. Wiener, 326 U.S. 340, 352 (1945). come tax, or an excise and cannot be a property tax if it is to comply come tax, or an excise and cannot with the requirements of the Constitution. not fall under any of the constitu- tax, this type of tax most likely does federal tax and would most likely be tionally approved categories for a characterized as a direct tax on property. As will be discussed in more almost certainly, not be character- detail below, a wealth tax would, has nothing to do with interstate or ized as a duty or impost because it international trade. VI. THE UNCONSTITUTIONAL DIRECT TAX some drastic changes.meaning of “direct tax” has undergone As a stated before, the common layman understands a “direct tax” to be tax levied directly on a person. 94 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 8 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 52 Side B 12/15/2020 11:16:45 12/15/2020 B 52 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 53 Side A 12/15/2020 11:16:45 52 95 , Pol- Court construed “direct Court found that a tax on car- Court found that Pollock the Court was asked to determine the Court was asked Hylton 48 , The Court found for Pollock stating that The Court found for Pollock stating The 53 49 Pollock v. Farmer’s Loan & Trust Company Pollock v. Farmer’s Loan & Trust at 573-74. . CON OR CONSTITUTIONAL CON OR holding through the Sixteenth Amendment to the 47 , 157 U.S , 3 U.S. at 172-73. Pollock In other words, besides the capitation or poll tax, the Court In other words, besides the capitation Because a carriage is a consumable commodity, the Court Because a carriage is a consumable 54 . at 175. . 51 50 Hylton v. United States Hylton v. United Hylton Id Id Pollock The Court did not change this definition until 1895, nearly one The Court did not change this definition This definition of a direct tax has not changed much since the In holding. on property or income. A direct tax still means a tax 50. 51. 52. 157 U.S. 429 (1895). 53. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 555 (1895). 54. 47. Hylton v. United States, 3 U.S. (3 Dall.) 171, 173 (1796). 48. 3 U.S. (3 Dall.) 171 (1796). 49. M K “direct tax” as used in the context of Sections 2 and 9 from Article I of in the context of Sections 2 and “direct tax” as used the Constitution. tax” to include taxes on property or income, Congress partially super- seded the riages was an indirect tax.riages was an indirect on expence The Court reasoned that “a tax for the convey- and . . . an annual tax on a carriage is an indirect tax; is a consumeable is of that kind; because a carriage ance of persons, expence of the such annual tax on it, is on the commodity; and owner.” whether taxes on carriages would be considered a “direct tax,” which carriages would be considered a whether taxes on [as] directed tax “to be laid according to the census, would require the . . . .” by the constitution “under the state systems of taxation all taxes on real estate or per- “under the state systems of taxation thereof [are] regarded as direct sonal property or the rents or income taxes. Justice Fuller argued in In support of the Court’s finding, Chief between direct and indirect the majority opinion, “that the distinction the framers of the Constitution and taxation was well understood by a direct tax to mean a tax those who adopted it,” and they understood rents, or income from such on real estate, personal property, property. only considered a tax on land as a direct tax. only considered a tax on land as hundred years later. In found that a tax on such a commodity was considered similar to a tax found that a tax on such a commodity an indirect tax.on an expense and was, therefore, Furthermore, the contemplated by the Constitution, Court stated that “the direct taxes poll tax, simply, without regard to are only two, to wit, a capitation, or circumstances; and a tax on property, profession, or any other LAND.” However, nearly fifteen years after the lock the plaintiff brought a suit seeking an injunction and alleging that the plaintiff brought a suit seeking estate and municipal bonds was an taxes on rents and incomes of real unconstitutional direct tax. 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 9 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 53 Side A 12/15/2020 11:16:45 12/15/2020 A 53 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 53 Side B 12/15/2020 11:16:45 M K , C Y [Vol. 54 The court 61 65 holding and the Six- Pollock This is a topic the Court discussed This is a topic the 58 , within the meaning of the Consti- Common Interpretation: The Sixteenth Amendment Although an income tax is still considered Although an income 57 states that “Congress shall have power to lay states that “Congress 59 , https://constitutioncenter.org/interactive-constitution/inter 56 CREIGHTON LAW REVIEW National Federation of Independent Business v. National Federation . amend. XVI. direct taxes 62 . amend. XVI. The Sixteenth Amendment, which was passed in 1909 The Sixteenth Amendment, ONST , 567 U.S. at 571. 55 , 157 U.S. at 573. ONST ONSTITUTION following precedent, stated that now a direct tax is a tax on following precedent, stated that now Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). U.S. C C at 571. Therefore, a direct tax is a tax on the ownership of prop- Therefore, a direct tax is a tax 60 . (citations omitted). . at 570. , Id. See Sebelius Id Id Id. Pollock See 63 or a tax based on the valuation of property. or a tax based on the valuation of In 1880, for example, [the United States Supreme Court] ex- In 1880, for example, [the United plained that “ tution, are only capitation taxes, as expressed in that tution, are only capitation taxes, In 1895, [the Court] instrument, and taxes on real estate.” include taxes on personal expanded [its] interpretation to property, in the course of property and income from personal income tax. That result striking down aspects of the federal Amendment, although [the was overturned by the Sixteenth on personal property to be Court] continued to consider taxes direct taxes. The Court noted that between the The Court noted that between the The Court in 64 57. U.S. C 56. Joseph R. Fishkin, et al., 58. 62. 60. 567 U.S. 519 (2012). 61. 65. 63. 64. 59. 55. NTERACTIVE I Constitution. recounted the history stating that: teenth Amendment’s supersession of that holding, the only direct teenth Amendment’s supersession under the Constitution are taxes on taxes that require apportionment property.the ownership of land or personal Without apportionment, exercise of the federal taxing such a tax is still an unconstitutional power. more recently in 2012. more recently in a direct tax, the Sixteenth Amendment gives Congress the power to Sixteenth Amendment gives Congress a direct tax, the taxes on incomes requirement and collect bypass the apportionment derived. from whatever source and collect taxes on incomes, from whatever source derived, without on incomes, from whatever source and collect taxes regard to any the several States, and without apportionment among census or enumeration.” pretation/amendment-xvi/interps/139 (last visited Oct. 22, 2020). and ratified in 1913, income and a property tax whether it be real or personal. income and a property tax whether erty Sebelius 96 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 10 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 53 Side B 12/15/2020 11:16:45 12/15/2020 B 53 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 54 Side A 12/15/2020 11:16:45 , 97 OOLEY of doing M. C HOMAS privilege of ownership over Therefore, the “di- 68 is essentially an evalu- exercise or But a wealth tax and an in- income 67 use wealth. annual CON OR CONSTITUTIONAL CON OR AX A wealth tax, however, is probably not an excise and can is probably not an excise and A wealth tax, however, T 66 . 680 (7th ed.)) (“Excises are ‘taxes laid upon the manufacture, sale, or con- IM XCISE . L The United States Supreme Court undeniably established that Supreme Court undeniably established The United States As mentioned before, an excise and a property tax can be hard to As mentioned before, an excise and There are two types of excises. The first is technically a tax on 66. Trust Chase Nat’l Bank v. United States, 278 U.S. 327, 339 (1929); New York 67. United States v. Burke, 504 U.S. 229, 233 (1992). 68. Flint v. Stone Tracy Co., 220 U.S. 107, 151 (1911) (quoting T ONST M K C VII. TAXES CONSTITUTIONAL INDIRECT THE or valuation of a direct tax is a tax on the ownership the definition of property. on many things that seem to be taxes However, there are not fall under the ownership of property but do the valuation or of the Constitution. of Article I, Section 9 Court’s narrow construction past, such as gift seemingly direct taxes in the The Court has upheld and not prop- taxes, characterizing them as excises taxes and estate erty taxes. business in the United States. If a tax is levied on these two circum- excise. stances, then it is considered an property. the The second is tax on a corporation for rect tax” and the “excise” were originally property taxes differentiated by activity. regardless of its activity or The “direct tax” was levied inactivity, and the “excise” was levied because of its activity. ation of a household’s come tax are different, as will be discussed.come tax are different, as will Finally, duties and from a wealth tax, but it still bears imposts are simple to distinguish to cover all the bases, that a wealth consideration if nothing else than tax is not a duty or an impost. A. E be distinguished from these cases. A wealth tax may also be hard to distinguish from an income tax because sumption of commodities within the country, upon licenses to pursue certain occupa- tions, and upon corporate privileges.’”). distinguish.property but it is not a In actuality an excise is a tax on art used in tax law.“property tax” as this is a term of “Excise” origi- or on the owners based on nally meant a levy on tangible property activity. was levied on activities such as movement, manufac- This ture, sale in commerce, or sale for consumption. property but it is a tax on the specific property but it is a tax on the specific Co. v. Eisner, 256 U.S. 345, 348-49 (1921); Bromley v. McCaughn, 280 U.S. 124, 138 Co. v. Eisner, 256 U.S. 345, 348-49 (1921); Bromley v. McCaughn, 280 U.S. 124, (1929). 1. The Tax on Use 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 11 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 54 Side A 12/15/2020 11:16:45 12/15/2020 A 54 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 54 Side B 12/15/2020 11:16:45 M K C Y 74 the 72 [Vol. 54 . Id of the prop- use shifting of the The court further stated 75 the United States Supreme Court the United States 69 Chase National Bank v. United States, 278 U.S. at 333-34. In CREIGHTON LAW REVIEW 71 Court applied the same reasoning to the policy pro- Court applied the same reasoning Chase The Court reasoned that Congress was taxing the actions that Congress was taxing the The Court reasoned at 338. Hylton v. United States, Hylton v. United . at 334-35. The plaintiff argued that the decedent had not transferred the 70 Chase Nat’l Bank, Id. Id The From its inception, constitutional interpretation has based the constitutional interpretation From its inception, [T]he power to tax the privilege of transfer at death cannot be [T]he power to tax the privilege of the formalities which may controlled by the mere choice of on another at death, or attend the donor’s bestowal of benefits his purpose is effected, so of the particular methods by which benefits with power to long as he retains control over those his death. Termination of direct their future enjoyment until the power of control at the time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that In 1928, the Court used this distinction between property taxes used this distinction between In 1928, the Court 73 74. 75. 69. 3 U.S. (3 Dall.) 171 (1796). 70. Hylton v. United States, 3 U.S. (3 Dall.) 171, 175 (1796). 71. Mc- Chase Nat’l Bank v. United States, 278 U.S. 327, 334 (1929); Bromley v. 72. 278 U.S. 327 (1929). 73. Court was asked to rule on whether a tax on the proceeds from life Court was asked to rule on whether a property tax on the insur- insurance policies would be considered an unconstitutional direct ance policies themselves, and therefore tax. distinction between a direct tax and an “excise” on the a direct tax and an “excise” on distinction between erty. In that: made this distinction when it stated that an annual tax on a carriage when it stated that an annual made this distinction commod- tax because a carriage is a consumable would be an indirect the conveyance of because a carriage is for ity and, most importantly, persons. ceeds as it had eight years earlier to the estate tax.ceeds as it had eight years earlier The Court found insurance policies was a tax on the that the tax on the proceeds of the insurance policies themselves. transfer of property, not on the life of the carriages and not the possession or valuation of the carriages. not the possession or valuation of the carriages and the same reason- to the estate tax and applied and excises in regards ing to the gift tax. proceeds to him upon death but that he was a beneficiary of the life insurance proceeds before death and the proceeds were more like a distribution from a trust. Caughn, 280 U.S. 124, 136 (1929). The Court reasoned that because the policy holder still had control The Court reasoned that because point of his death, the beneficiary and could direct the policy up to the the decedent’s death.was not entitled to the proceeds until The pro- death of the decedent, therefore, ceeds were not transferred until the on transfer of property and not a the tax on the proceeds was a tax property. direct tax on the ownership of the 98 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 12 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 54 Side B 12/15/2020 11:16:45 12/15/2020 B 54 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 55 Side A 12/15/2020 11:16:45 99 Again, the The Court 80 81 76 was asked to decide The Sixteenth Amend- 79 83 82 77 of the property, and therefore not a of the property, transfer Bromely v. McCaughn CON OR CONSTITUTIONAL CON OR , 280 U.S. at 139. at 338 (emphasis added). at 334. . at 134-35. . at 139. . at 136. , just as effectively as would its exercise. , just as effectively Id. Id. Bromley Id Id Id The Court in While taxes levied upon or collected from persons because of While taxes levied upon or collected may be taken to be direct, their general ownership of property has consistently held, . . . [the United States Supreme Court] government, that a tax im- almost from the foundation of the or the exercise of a posed upon a particular use of property to ownership, is an ex- single power over property incidental cise which need not be apportioned. One particular type of excise has to do with corporations.One particular type of excise has to In 1910 Just like an estate tax, where a tax is levied on the value of the Just like an estate tax, where a tax economic benefits of property which is the real subject of the of property which is the real subject economic benefits tax of the in- the tax was on the redemption As the tax was applied, to the gift this same reasoning in regards The Court has used 78 79. 280 U.S. 124 (1929). 80. 77. 78. 81. 82. 83. Flint v. Stone Tracy Co., 220 U.S. 107, 144 (1911). 76. M K found that: Court held that this was not a property tax levied on the ownership or Court held that this was not a property was not a direct tax. value of the gift and, therefore, it whether a tax on a gift made by the plaintiff was an unconstitutional a gift made by the plaintiff was whether a tax on was collected with- taxing power when the tax exercise of Congress’s the apportionment requirement. out taking into account ment, which allows Congress to tax incomes without apportionment, a was not ratified until 1913, and as such, Congress did not yet have direct tax requiring apportionment. direct tax requiring the United States Supreme Court was asked to rule on a statute the United States Supreme Court passed by Congress which required corporations to pay a one percent tax on income above five thousand dollars. property at transfer, a tax on the presentment of a gift is a tax on the property at transfer, a tax on the on the actual property itself.activity concerning the property, not Al- are technically a tax on property, though an excise and a direct tax tax,” and is, therefore, un- only a direct tax is considered a “property apportionment requirement. constitutional if levied without the surance policies, i.e., the surance policies, tax. 2. The Corporate Privilege 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 13 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 55 Side A 12/15/2020 11:16:45 12/15/2020 A 55 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 55 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 note 1. . 680 (7th ed.). supra IM , . L ONST , C OOLEY 85 M. C Ultra-Millionaire Tax However, the Court upheld this However, the Court the Court stated that “[e]xcises are the Court stated 84 HOMAS note 2; 86 note 2. Additionally, “household” is a term of , The Court reasoned that an income tax The Court reasoned 92 87 supra supra In other words, Congress can levy a tax on In other words, Congress can levy , , 89 CREIGHTON LAW REVIEW . amend. XVI. It does not tax the transfer of the assets, nor does it It does not tax the transfer of the A net worth, if the legal or accounting definition is used, A net worth, if the legal or accounting 91 ONST , 220 U.S. at 177. , 220 U.S. at 151 (quoting T 90 at 151 (quoting Thomas v. United States, 192 U.S. 363 (1904)). . Furthermore, the tax on a corporation’s income “may be de- tax on a corporation’s income Furthermore, the Flint v. Stone Tracy Co. Flint v. Stone Tracy Flint Flint Id. Id Tax on Extreme Wealth Tax on Extreme Wealth 88 Furthermore, a wealth tax as proposed, probably does not fall Furthermore, a wealth tax as proposed, As stated before, an excise is technically a tax on property, but it As stated before, an excise is technically In 91. 678 New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U.S. 665, 92. 88. 85. 86. 220 U.S. 107 (1911). 87. 89. 90. 84. U.S. C blanket authority to tax income. blanket authority n.1 (1950) (Black, J., dissenting); Holland v. United States, 348 U.S. 121, 132 (1954). income tax on corporations as an excise. income tax on corporations ‘taxes laid upon the manufacture, sale, or consumption of commodities manufacture, sale, or consumption ‘taxes laid upon the occupations, and upon licenses to pursue certain within the country, upon corporate privileges.’” art unique to tax law that means a home which constitutes the princi- on corporations is simply an “excise . . . imposed on importation, con- simply an “excise . . . imposed on on corporations is privileges, and sale of certain commodities, sumption, manufacture and the transactions, vocations, occupations particular business like.” corporations for the privilege of doing business in the United States corporations for the privilege of doing is an excise and not a direct tax. without apportionment because this tax a specific use of the assets which is the basic function of an excise. tax a specific use of the assets which a direct tax.under the corporate exception for The proposals from tax corporations but households. both presidential candidates do not for Bernie Sanders even goes farther describing the consequences married couples and singles. is found by valuing a taxpayer’s assets and subtracting the liabilities. is found by valuing a taxpayer’s assets those assets and levying a tax The wealth tax is calculated by valuing merely because the taxpayer pos- based on the value of those assets sesses them. scribed as an excise upon the particular privilege of doing business in scribed as an excise upon the particular advantages which arise from . . . a corporate capacity, i.e., with the corporate organization.” is not a “property tax.” A wealth tax on a household’s net worth, how- of a “property tax.”ever, appears to be a classic example The current on a percentage of a taxpayer’s proposals for the wealth tax are based net worth. 3. The Wealth Tax Is Not an Excise 100 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 14 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 55 Side B 12/15/2020 11:16:45 12/15/2020 B 55 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 56 Side A 12/15/2020 11:16:45 101 The 93 note 2. supra , In contrast, an 94 the United States Su- decision by allowing 96 In other words, the Six- , 98 99 Pollock Tax on Extreme Wealth note 1; supra , CON OR CONSTITUTIONAL CON OR . amend. XVI. AX ONST T I.R.C. § 2(a)(1)(B) (2020) (defining “surviving spouse” as a taxpayer “who However, in 1909, Congress passed the Sixteenth Amend- However, in 1909, Congress passed 95 Pollock v. Farmers’ Loan & Trust Co. Pollock v. Farmers’ Loan & Trust See Ultra-Millionaire Tax 97 NCOME Like many legal terms, “income” is a term of art with a specific Like distinguishing a wealth tax from an excise, distinguishing a Like distinguishing a wealth tax In 95. I.R.C. §96. 1 (2020). 157 U.S. 429 (1895). 97. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 580 (1895). 98. U.S. C 99. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 571 (2012). 94. 93. M K pal place of abode for the taxpayer during the taxable year. for the taxpayer during the taxable pal place of abode proposals seem pretty clear that the wealth tax would tax humans and clear that the wealth tax would proposals seem pretty not corporations. corporate tax would not fall under the The wealth corporation for the excise because it is not a tax on a exception for an business in the United States.privilege of doing a wealth Therefore, “property tax,” not net worth is most likely a tax based on a human’s in the United or the privilege of doing business an excise on activity States. B. I income tax technically levies a wealth tax on a taxpayer based on income tax technically levies a wealth income. preme Court ruled that a tax levied on the income from rents and preme Court ruled that a tax levied requires apportionment between the other property is a direct tax that states. Congress to bypass the apportionment requirement and collect taxes Congress to bypass the apportionment the income was from rents on or on incomes regardless of whether property.other income from personal or real Therefore, even though this type of tax is still considered a direct tax, it is now constitutional for Congress to collect taxes on incomes. teenth Amendment superseded the teenth Amendment superseded maintains as his home a household which constitutes for the taxable year the principal place of abode . . . of a dependent”). ment to the Constitution and the amendment was ratified later in ment to the Constitution and the 1913. federal gov- The Sixteenth Amendment gives Congress, i.e., the on incomes, from whatever source ernment, the power to “collect taxes the several States, and with- derived, without apportionment among out regard to any census or enumeration.” meaning unique to tax law. tax begins with a taxpayer’s An income wealth tax from an income tax can also be difficult.wealth tax from an income tax can As mentioned a measurement of wealth.above, an income tax is essentially How- by the means used to measure the ever, the distinguishment comes wealth.proposals would imple- As explained previously, the current net worth. ment a wealth tax based on a taxpayer’s 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 15 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 56 Side A 12/15/2020 11:16:45 12/15/2020 A 56 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 56 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 any ac- In fact, the accession to . 104 or , 348 U.S. 426, 431 . Pollock Unfortunately, this 100 This seems very circu- 103 economic benefit The real difference between an income . L.J. 1057, 1091 (2001) (“From the beginning, sup- 105 T Court’s definition of accession to wealth was Court’s definition of accession to wealth . S The Taxing Power, the Sixteenth Amendment, and the 101 .” RIZ 102 CREIGHTON LAW REVIEW In contrast, the wealth tax values a household’s net In contrast, the wealth tax values note 13, at 2. , 33 A 106 supra Erik M. Jensen, See , then it is an income tax which, thanks to the Sixteenth , then it is an income tax which, Technically, an income tax is a type of wealth tax. Technically, an income tax is a type The definition of gross income . . . sweeps broadly. [It] pro- gross income . . . sweeps broadly. The definition of whatever income means all income from vides that “gross specifically subject only to the exclusions source derived,” intended in the Code. . . . Congress enumerated elsewhere its taxing . . . to exert “the full measure of through [the IRC] “ within the definition of income power,” and to bring cessio[n] to wealth Therefore, income is any accession to wealth.Therefore, income is any accession Furthermore, the 102. 504 U.S. 229 (1992). 103. French v. Comm’r, No. 14777-15S, 2018 Tax Ct. Summary LEXIS 38, at *1, 104. Jensen, 106. I.R.C. §§ 1, 61 (2020). 105. 100. I.R.C. §101. 61 (2020). United States v. Burke, 504 U.S. 229, 233 (1992) (alteration in original) (em- “gross income,” which is defined in the Internal Revenue Code (“IRC”) is defined in the Internal Revenue “gross income,” which source derived . . . .” as “income from whatever income tax was originally introduced as a way to make the wealthy income tax was originally introduced lessen the gap between poor and pay their fair share of taxes and wealthy American citizens. (1955)). *20 (T.C. July 12, 2018). is not a very helpful definition, but the Court in 1992 expounded on definition, but the Court in is not a very helpful stating: the IRC definition lar, but simply stated if a taxpayer receives an economic benefit that lar, but simply stated if a taxpayer he previously possessed, then this leaves him with more wealth than is income. If a tax is levied on this tax and a wealth tax, as described in the presidential candidate pro- tax and a wealth tax, as described wealth.posals, is the mode of gauging the An income tax values the calculates a tax owed based on “gross income” of an individual and that valuation. porters of the modern income tax stressed that it was necessary to tie taxation to ability to pay—to ensure the wealthy who had benefitted from the American system would pay their fair share of the nation’s tax liability. Ability to pay was also offered as a justifica- tion for graduating an income tax, of course—for taxing higher levels of income at higher rates.”). recently clarified by the U.S. Tax Court in 2018.recently clarified by the U.S. Tax The tax court stated that accords the taxpayer that an accession to wealth is a transaction income. an economic benefit equivalent to Amendment, does not require apportionment between the states Amendment, does not require as defined in though technically still a direct tax wealth phasis added) (first quoting I.R.C. § 61(a); then quoting Helvering v. Clifford, 309 U.S. 331, 334 (1940); and then quoting Comm’r v. Glenshaw Glass Co Meaning of “Incomes” United States v. Burke 102 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 16 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 56 Side B 12/15/2020 11:16:45 12/15/2020 B 56 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 57 Side A 12/15/2020 11:16:45 , 110 103 acces- Net Worth The pro- The hold- 109 112 The Constitu- note 23; 108 . supra In order to be an income tax, In order to be an 107 economic benefit note 24. supra relevant. The Court simply stated that “[a]n im- CON OR CONSTITUTIONAL CON OR is Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976). . art. I, § 8, cl. 1. MPOST or some increased or some increased This definition was discussed more at length much I The question before the Court was whether a state could The question before the Court was ONST , 25 U.S. at 437-40. 113 111 . . at 437. Id Brown Id See generally 114 UTY OR note 23; Leiserson, As mentioned above, the distinction between a wealth tax and As mentioned above, the distinction 108. United States v. Burke, 504 U.S. 229, 233 (1992); French v. Comm’r, No. 109. U.S. C 110. 113. 111. Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 437-40 (1827). 112. 114. 107. Camien v. Comm’r, 420 F.2d 283, 285 (1970); Ganti, M K worth based on the value of assets. worth based on the vision simply says that, “Congress shall have the Power To lay and vision simply says that, “Congress . . to pay the Debts and provide for collect . . . Duties, [and] Imposts . Welfare of the United States[.]” the common Defence and general ing of the case is irrelevant to this paper but the definition of “duty” ing of the case is irrelevant to this found by the court tion does not bar a wealth tax without apportionment, but it must tax a wealth tax without apportionment, tion does not bar of it.that wealth, not just the mere possession some change in Be- any variations or tax as introduced would not tax cause the wealth wealth, this could but merely the existence of changes in the wealth apportionment re- an income tax immune from the not be considered Constitution. quirements of the C. D Congress would have to define net worth to include some sort of to define net worth to include Congress would have 14777-15S, 2018 Tax Ct. Summary LEXIS 38, at *20 (T.C. July 12, 2018). post, or duty . . . is a custom or a tax levied on articles brought into a post, or duty . . . is a custom or a country[.]” later in 1976 when the Court was asked to rule on this question again. constitutionally require an importer to take out a license before per- constitutionally require an importer that was imported. mitting him to sell a bale or package duty or impost is a simple one to make. However, for the sake of thor- it is the final constitutionally oughness, it bears mentioning because acceptable tax that bears discussion. Congress’s power to lay duties Section 8, the same constitutional and imposts comes from Article I, power to collect taxes. provision that grants Congress the sion to wealth supra As many other constitutional terms, “Duty or Impost” is not defined in As many other constitutional terms, the Constitution. The definition of “Duty or Impost” comes from case law. asked to discuss the The United States Supreme Court was first 1827 when a state congress passed definition of a “duty” or “impost” in retailers of dry goods and for other an act laying duties on licenses to purposes. 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 17 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 57 Side A 12/15/2020 11:16:45 12/15/2020 A 57 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 57 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 note 1. The Court supra , 116 the plaintiff challenged a tax the plaintiff challenged , 423 U.S. at 278-81. Ultra-Millionaire Tax 115 , note 2; Michelin Therefore, a “duty or impost” as listed in Therefore, a “duty or impost” as supra , 118 CREIGHTON LAW REVIEW 117 . art. I, § 10, cl. 2; , 423 U.S. at 291-93 (citations omitted). ONST Net worth would most likely be defined as a valuation of Net worth would most likely be Michelin Tire Corp. v. Wages Michelin Tire Corp. Michelin Tax on Extreme Wealth 119 In [T]he words “imposts” and “duties” as used in 1787 had mean- and “duties” as used in 1787 [T]he words “imposts” goods as to be exactions upon imported ings well understood is, charges were like customs duties, that imports. “Imposts” “Du- at the time and place of importation. levied on imports excises as well as cus- ties” was a broader term embracing land, and general toms duties, and probably only capitation, the term “tax” rather than property exactions were known by the term “duty.” The characteristic common to both “imposts” directed at imports and “duties” was that they were exactions as imposed by the sea- or commercial activity as such and, Confederation, were pur- board States under the Articles of interstate and foreign posefully employed to regulate situated less favorably commerce and tax States geographically. An analysis of a wealth tax as a duty or impost is not difficult.An analysis of a wealth tax as a duty A The last time this subject was discussed was in 1997 where the The last time this subject was discussed 117. 118. Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 637-38 (1997). 119. 115. 423 U.S. 276 (1976). 116. U.S. C stated that the tax was a duty or impost because: stated that the tax on goods imported from France and Nova Scotia as unconstitutionally from France and Nova Scotia as on goods imported because the tax I, Section 10 of the Constitution prohibited by Article for execut- and it was not absolutely necessary was a “duty or impost” laws. this case Georgia’s, inspection ing the state’s, in the Constitution is a tax on imports or exports and if a wealth tax does the Constitution is a tax on imports the country, it cannot be a “duty not tax goods leaving or coming into or impost.” is a tax based on a household’s net wealth tax, as stated previously, worth. assets merely because of that household’s possession of them.assets merely because of that household’s A duty movement or action of property or impost, like an excise, involves before it can be taxed. a duty or impost involves a Unlike an excise, specific movement of property, movement inside or outside of a state or the United States. tax does not take move- In contrast, a wealth ment into consideration when levying the tax, but taxes the mere pos- session of the property and not the movement. A wealth tax cannot be a duty or impost because net worth, as most likely defined, does not refer to imports or exports and therefore cannot be a duty or impost. Court simply stated that duty, impost, and import refer to interstate Court simply stated that duty, impost, and international trade. 104 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 18 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 57 Side B 12/15/2020 11:16:45 12/15/2020 B 57 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 58 Side A 12/15/2020 11:16:45 105 CON OR CONSTITUTIONAL CON OR Recently there has been a push for Congress to pass a wealth tax. been a push for Congress to pass Recently there has tax, they would have to define If Congress were to pass a wealth a tax on the value of property A property tax, simply stated, is Neither is a wealth tax based on net worth likely classified as an M K VIII. CONCLUSION Democratic presi- proposed by two leading former The wealth tax, as households based would tax wealthy or ultra-rich dential candidates, on their net worth. or not a wealth tax is constitutional Whether the statue, or the how Congress, when passing would depend on would define the Court, when ruling on a case, United States Supreme term “net worth.” is the value definition by the tax courts The current value or purchase assets, whether by fair market of a household’s price, minus that household’s liabilities. Other legal and accounting same, definition of net worth as a definitions use a similar, if not the the liabilities.value of the household’s assets minus The courts would how to define net worth, but Con- likely be bound by precedent as to can define net worth however it gress is not bound by precedent and would like. be a direct tax because the Consti- “net worth” in a way that would not tax” must be apportioned be- tution specifically states that a “direct that is virtually impossible tween the states by population; something in our modern political system. The definition of a direct tax, as has is simply a property tax or a been decided by various Court holdings, tax on income from property. However, the Court’s decision that in- to the apportionment requirement come taxes are direct taxes subject Amendment of the Constitution. was superseded by the Sixteenth to in the Constitution is simply a Therefore, the direct tax referred property tax. property.merely because a person owns that To understand this, an is helpful.analysis of the various “indirect taxes” A wealth tax is not an excise. An excise is levied on the specific use of or the exercise of ownership over property.is a tax on the ownership of A wealth tax assets.no other reason other than ownership, a wealth tax values For those assets and calculates taxes owed. Because the wealth tax is a an tax on property ownership, not the use of property, then it is not excise. can also be levied on corporations for the privilege of An excise doing business in the United States.wealth tax does not meet this A requirement either. on households or humans, A wealth tax is placed not corporations. cannot be an excise through Therefore, a wealth tax use of property or through corporate privilege. income tax. accession to wealth, i.e., an An income tax is levied on an individual’s change in wealth over the taxable year. In contrast, a wealth tax based on net worth, as commonly defined, does not tax the 2020] \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 19 9-DEC-20 15:43 C Y 42655-cre_54-1 Sheet No. 58 Side A 12/15/2020 11:16:45 12/15/2020 A 58 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 58 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 CREIGHTON LAW REVIEW Finally, a wealth tax is not a duty or impost.Finally, a wealth imposts Duties and income tax, or a duty or impost A wealth tax is not an excise, an change in wealth but its possession.change in wealth tax pro- Therefore, the wealth on how Con- presidential candidates, depending posed by the former characterized as an worth,” most likely could not be gress defines “net income tax. i.e., the movement on imports or exports, are taxes levied specifically state or national borders.of property across regardless A wealth tax, not be a tax on terms would likely be defined, could of how any vital imports or exports. or impost a wealth tax cannot be a duty Therefore, classified as a “property tax.” and would still be but a “property tax.” As property tax is the only definition of “direct requirement, a wealth tax tax” still subject to the apportionment to be in conformity with constitu- would likely require apportionment tional constraints. 106 \\jciprod01\productn\C\CRE\54-1\CRE104.txt unknown Seq: 20 9-DEC-20 15:43 42655-cre_54-1 Sheet No. 58 Side B 12/15/2020 11:16:45 12/15/2020 B 58 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 59 Side A 12/15/2020 11:16:45 R R R R R R R R R R R R R R R R R R R R R R 107 ...... 121 ...... 128 for their hard work in ...... 130 DDITION ...... 111 A ...... 141 † ...... 111 OWERS CT AND THE ...... 133 ...... 117 Creighton Law Review ...... 123 ” ...... 139 A ARKING ...... 112 EQUIREMENT D. S R M ” ...... 130 ...... 130 ...... 118 ...... 117 ANE OTICE ...... 123 ITLE NVENTS ...... 108 D ARKING N ...... 125 I T ATENT ...... 144 SSOCIATES OSTING ”...... 115 M P OTICE “A “P ” ...... 113 N ...... 113 MERICA OF IRTUAL A V SSOCIATES OSTING EFINING EFINING RIGINS OF IGITAL EGISTRATION HE NSERTION OF 1. Law Contract 2. Property Real – Equitable Servitudes 1. Trademark 2. Copyright 3. Property Real – Equitable Servitudes 1. Setting the Boundary for “Posting” 2. Website Transience VIRTUAL PATENT MARKING VIRTUAL PATENT ENSURING PROPER NOTICE: ENSURING B. D C. I B. R A. D A. O B. T A. “P B. “A A. D STATUTORY TERMS STATUTE REGISTRATION NOTICE CLEARING THE FOG SURROUNDING CLEARING I. INTRODUCTION † J.D. Candidate, The Ohio State University Moritz College of Law, 2021; V. FOR THE PROPOSING DEFINITIONS II. OF PATENT MARKING THE HISTORY VI. CONCLUSION IV. OF DIGITAL NOTICE AND PRINCIPLES III. IN THE VIRTUAL MARKING AMBIGUITIES M K preparing this article for publication. M.B.A., University of Cincinnati, 2018; B.S., University of Cincinnati, 2018. Special thanks to Professor Bryan H. Choi for his mentorship and insight throughout the devel- opment of this article, and to the editors of \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 1 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 59 Side A 12/15/2020 11:16:45 12/15/2020 A 59 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 59 Side B 12/15/2020 11:16:45 M K 6 C Y va- See [Vol. 54 On the lid 1 While often over- 3 The Virtues of Virtual Mark- § 20.03[7][c][iii] (2020) (discuss- Use of this language is typi- Use of this language ATENTS 2 P patent.’”); 35 U.S.C. § 287(a) (providing that . 367, 369 (2011) (noting a recent increase in However, when the pending patents However, when the 4 EV the HISUM ON Corey McCaffrey, Note, , C See . U. L. R Heinz Ketchup Dip & Squeeze Packets (0.95 oz Packets, Heinz Ketchup Dip & Squeeze Packets (0.95 W , HISUM CREIGHTON LAW REVIEW , 136 S. Ct. 1923 (2016) (“[T]he statute is not so broad as to allow S. C MAZON , 105 N ONALD 7 D , https://www.amazon.com/dp/B00SW257AG (last visited Aug. 22, 2020). , https://www.amazon.com/dp/B00SW257AG (displaying this language in the picture of the ketchup packet). (displaying this language in the picture of Stryker Corp. v. Zimmer, Inc., 782 F.3d 649, 660 n.5 (Fed. Cir. 2015), 35 U.S.C. § that if a patent is not marked, “no 287(a) (2013) (requiring 35 U.S.C. § marks upon, or affixes to, or uses in 292(a) (2011) (“Whoever Additionally, for any later-issued patents that were not Additionally, for any later-issued 5 See Id. See See See Consider an everyday product many consumers use with little, if product many consumers use Consider an everyday If Heinz were to continue to use the lids as they read today, it If Heinz were to continue to use 4. 6. 3. 2. 5. 1. Specifically, the Heinz Dip & Squeeze ketchup packet. For an example of the I. INTRODUCTION packet. the packaging: a ketchup any, thought regarding of the packet, in small print, Heinz has printed the words “U.S. Pat. small print, Heinz has printed the of the packet, in Pats. Pending.” Nos. D623,072; other looked, this marking language serves an important function: if Hunt’s language serves an important looked, this marking Heinz will be able infringes on Heinz’s patent, Ketchup, for example, had actual no- without having to prove that Hunt’s to collect damages infringement. tice of the alleged ing the general mechanics of patent marking). cally referred to as “marking” a patented product. cally referred to covering the product are granted, rejected, or abandoned, the marking covering the product are granted, because there are no longer language on the product will be inaccurate any patents pending. This creates a serious problem for Heinz. which carries a statutory penalty of could be liable for false marking, words, per falsely marked ketchup up to $500 per offense (or in other packet). focus on false marking, exemplified by a sharp increase in the number of false marking claims in the year 2010). marking with a different patent—with different claims—to provide sufficient notice to the public. Rather, the plain language of the marking statute provides that the patented article be marked with the ‘number of damages shall be recovered by the patentee in any action for infringement, except on damages shall be recovered by the patentee the infringement and continued to infringe proof that the infringer was notified of be recovered only for infringement occurring thereafter, in which event damages may after such notice”). the words . . . ‘patent pending,’ or any word advertising in connection with any article, been made, when no application for patent importing that an application for patent has has been made, or if made, is not pending, for the purpose of deceiving the public—Shall be fined not more than $500 for every such offense.”). False marking is not a strict liability offense, so some evidence of an intent to deceive would be required. marked on the product, Heinz would be unable to accrue damages in marked on the product, Heinz would actual notice to the infringer. an infringement action until it provided product design, see A cated on other grounds ing in Patent Reform Pack of 500) Clontech Laboratories, Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352-53 (Fed. Cir. 2005) (“[I]n order to establish knowledge of falsity the plaintiff must show by a preponderance of the evidence that the party accused of false marking did not have a reasonable belief that the articles were properly marked (i.e., covered by a patent). Absent such proof of lack of reasonable belief, no liability under the statute ensues.”). Nonetheless, the spec- ter of liability could still exist. 108 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 2 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 59 Side B 12/15/2020 11:16:45 12/15/2020 B 59 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 60 Side A 12/15/2020 11:16:45 109 , https:// presuma- 7 Furthermore, use Part III. 10 See infra for example, “Pat. http:// for example, “Pat. 8 Using this webpage to provide the patent Using this webpage to provide the note 5, at 375 (“Patents are dynamic: new patents are note 5, at 375 (“Patents are dynamic: new 9 note 5, at 387-89 (“[I]f [a patentee] abandoned an applica- The Kraft Heinz Company Virtual Patent Marking supra supra , ENSURING PROPER NOTICE ENSURING EINZ 11 H at 389 (“If [the patentee] had created molds that read, ‘Patents: [virtual RAFT § 287(a) (permitting patentees to mark products with “the abbreviation McCaffrey, McCaffrey, K See See id. See See See With virtual marking, instead of marking all of its products with instead of marking all of its With virtual marking, 8. 9. this exact page for “virtual patent mark- Notably, KraftHeinz has earmarked 7. 10. 11. M K To avoid these issues, Heinz could redesign its lids to list all of the Heinz could redesign its lids To avoid these issues, pending” language. no longer include the “patent active patents and additional cost of almost certainly result in the However, this would and would also not happen immediately; creating new lids, www.kraftheinzcompany.com/patents.html (last visited Aug. 20, 2020). Perhaps of KraftHeinz is reluctant to deploy this page in any meaningful sense due to the lack clarity regarding the virtual marking requirements. bly, Heinz would want to exhaust its existing inventory of lids before want to exhaust its existing inventory bly, Heinz would lids.using the new, accurate seeks to The doctrine of virtual marking solve this conundrum. mark the packet as it does currently, Heinz could a patent number by a web address, with “Pat.” followed of a virtual marking website would eliminate the potential costs asso- of a virtual marking website would the web address of the page ciated with changing the lids, assuming did not change. kraftheinz.com/patents.” numbers for the ketchup packets would serve two benefits: first, it numbers for the ketchup packets update the page with a new patent would allow Heinz to immediately allowed; and second, it would al- number if a pending patent became expired patents or “patent pending” low Heinz to quickly remove any false marking. language so as to avoid liability for granted, existing patents expire, and a patent’s scope may change during its lifetime. granted, existing patents expire, and a patent’s static: manufacturing equipment is ex- Manufacturing, on the other hand, is typically are not modified after production.”). pensive to change, and individual products tion or the USPTO denied patent protection, then [the patentee] could immediately re- tion or the USPTO denied patent protection, then [the patentee] could immediately move the application from the product page to avoid potential liability for false marking. With virtual marking, [the patentee] could make any necessary changes in real time without changing the manufacturing process of the physical device. . . . If the product page continued to list the patents and clearly noted that they had expired, then virtual marking would achieve the same public benefit that the court identified without raising any concern as to whether it constituted a false mark.”). marking URL],’ it could have updated the site at virtually no cost, and no physical change to the lids or the manufacturing process would have been necessary.”). ‘pat.’ together with an address of a posting on the Internet, accessible to the public with- ‘pat.’ together with an address of a posting associates the patented article with the num- out charge for accessing the address, that ber of the patent”). this ing,” but no patent information is actually available on the page at the time of piece. for unmarked products, damages do not accrue until “the infringer [is] notified of the for unmarked products, damages do not accrue thereafter, in which event damages may be infringement and continue[s] to infringe after such notice”). recovered only for infringement occurring 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 3 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 60 Side A 12/15/2020 11:16:45 12/15/2020 A 60 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 60 Side B 12/15/2020 11:16:45 M K C Y 12 see also [Vol. 54 ATENT AND P TATES Specifically, the S 13 NITED . , U EE 23 (2014), https://www.uspto.gov/ K. L ARKING . L.J. 159, 192 (1996) (“Companies need legal M ICHELLE US Notice Failure Revisited: Evidence on the Use of Notice Failure Revisited: Evidence on the B IRTUAL AUL V P E , 8 D There is some ambiguity in this language. Two There is some ambiguity CREIGHTON LAW REVIEW 16-17 (Nat’l Bureau of Econ. Research, Working Paper No. 16-17 (Nat’l Bureau of Econ. Research, note 12, at 23 (“The commenter proposed that the USPTO un- 14 EPORT ON Rethinking the Paradigm: Can the Wagner Act and Labor-Manage- , R supra , FFICE EE Gaetan de Rassenfosse, L Mayo Collaborative Servs. v. Prometheus Laboratories, Inc., 566 U.S. 66, O See See See 15 Despite these seemingly clear benefits, patentees seem reluctant clear benefits, patentees Despite these seemingly This article proposes interpretations for “posting” and “associates” This article proposes interpretations 13. 14. 35 U.S.C. §15. 287(a). 12. RADEMARK to employ virtual marking in place of traditional marking methods. marking in place of traditional marking to employ virtual marking statute requires that patentees who virtually mark their requires that patentees who virtually marking statute an address of a “the abbreviation ‘pat.’ together with products include charge for ac- accessible to the public without posting on the Internet, with the num- that associates the patented article cessing the address, ber of the patent.” sites/default/files/aia_implementation/VMreport.pdf (highlighting a comment that “vir- tual marking is not widely used”). certainty in order to pursue their business goals in an efficient manner.”). particular points of ambiguity are the terms “posting” and “associ- particular points of ambiguity are ates.” website with multiple Is a “posting” a single webpage or a pages? article with the What does it mean to “associate” a patented number of the patent? Patentees may be more willing to mark their can be answered, and they can be products virtually if these questions the statutory requirements as a more certain they are meeting result. dertake an initiative to educate the public on how to use virtual marking and on the dertake an initiative to educate the public on how to use virtual marking and on advantages of using this alternative. The commenter further suggested that increased knowledge and awareness of virtual marking may lead to more usage of virtual mark- ing, thereby benefiting both patent owners and the public.”) 24288, 2018), https://www.nber.org/papers/w24288.pdf (finding that approximately 12% 24288, 2018), https://www.nber.org/papers/w24288.pdf of patent holders use virtual marking, and estimating that up to 25% of commercially active patentees use virtual marking); M 90 (2012) (expressing concern about “legal uncertainty” in the patent context); that are consistent with the text and purpose of the statute, as well as that are consistent with the text and of the law.notice requirements in other areas It also proposes an ad- patentees employing virtual mark- ditional statutory requirement for ing. system, and patent Part II argues that the history of the patent the interpretation of the ambigu- marking specifically, should inform ous statutory terms. Part III outlines the particular issues caused by requirements; specifically, that the ambiguity in the virtual marking a “posting” is, the extent to which it is unclear what the boundary for permissible, and what it means to downtime and modifications are number.“associate” a product with a patent Part IV examines how Virtual Patent Marking ment Cooperation Coexist? Anna S. Rominger, T 110 either of the to lack of education and awareness, This could be due specific require- marking altogether or of the availability of virtual conform with the marking statute. ments needed to \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 4 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 60 Side B 12/15/2020 11:16:45 12/15/2020 B 60 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 61 Side A 12/15/2020 11:16:45 . 16 17 EV 111 . L. R ROP . P NTELL , 48 IDEA: I ARKING M The Adequacy of the Mark: Raising the Standard Under 35 ENSURING PROPER NOTICE ENSURING This was further complicated by the fact that the ATENT 19 P In the early nineteenth century, someone looking to In the early nineteenth century, 18 Tim Hsieh, Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“Interpretation of a (internal quotation marks omitted). See Id. See RIGINS OF This Part explains the basic history of the patent system and the This Part explains the basic history In the early years of the patent system, patentees were not re- In the early years of the patent 19. 17. Boyden v. Burke, 55 U.S. 575, 582 (1852) (“Patents are public records. All per- 18. 16. M K 69, 78 (2007) (discussing the “sheer inconvenience” of obtaining information about pat- ents before the introduction of the marking requirement). other areas of the law treat questions of digital notice and registration law treat questions of digital notice other areas of the is adequate when the common thread that notice notice, and develops the existence of be reasonably expected to recognize an observer could a certain fact.limited to a that “posting” should be Part V proposes connect each “associate” should mean to directly single webpage, that and that the title with each relevant patent number, patented product included along with the patent number.of each patent be Part V fur- urges the United to adopt these interpretations, ther urges courts promulgate these Trademark Office (“USPTO”) to States Patent and to include the new its guidance, and urges Congress interpretations in when it next revisits the patent language in the marking statute system. II. THE HISTORY OF PATENT MARKING well as the background for the intro- patent marking requirements, as requirements.duction of the virtual marking A clear definition goals of the patent system, the should be consistent with the ultimate and virtual marking specifically. marking requirements generally, singular patent office (and all of the patents) were destroyed in a fire learn which patents covered a certain product would have to travel by learn which patents covered a certain where the patents were stored in horseback to Washington, D.C., “shoebox form.” word or phrase depends upon reading the whole statutory text, considering the purpose the and context of the statute, and consulting any precedents or authorities that inform analysis.”). to sons are bound to take notice of their contents, and consequently should have a right obtain copies of them.”). quired to mark their products; rather, patents were considered public quired to mark their products; rather, to be on notice of all patents. records and the public was considered U.S.C. § 287(a) for Patented Online Software Methods However, Congress quickly became aware of the difficulties of such a However, Congress quickly became requirement. As a result, this history will illuminate the analysis of how to inter- As a result, this history will illuminate pret the ambiguous statutory terms. A. O 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 5 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 61 Side A 12/15/2020 11:16:45 12/15/2020 A 61 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 61 Side B 12/15/2020 11:16:45 M K C Y 25 . 2, 3 The 23 ECH [Vol. 54 In 1927, Under this 24 IRTUAL 22 . J.L. & T 28 V ICH 21 , 14 R DDITION OF 27 A To Mark or Not to Mark: Application of note 22, at 3. The House Report for the Act also “Virtual marking” was introduced 30 29 CT AND THE supra A This was the final revision prior to the enact- This was the final revision prior 26 . 112-98, at 52-53 (2011) (“This amendment will save costs for CREIGHTON LAW REVIEW O NVENTS Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat I . N EP (“Realizing these problems, Congress imposed a duty to mark in the ; 35 U.S.C. § 287(a) (2013). (noting that “[t]he Patent Act of 1952 codified the Marking Statute as it Understandably, Congress sought to introduce another Congress sought to introduce Understandably, MERICA Goryunov & Polyakov, H.R. R (quoting Nike v. Walmart Stores, Inc., 138 F.3d 1437, 1443 (Fed. Cir. 20 A See id. See Id. See id. See generally See Id. See id. Id. ARKING HE In 2011, Congress passed the America Invents Act, which intro- In 2011, Congress passed the America At this point in the doctrine’s development, the Federal Circuit At this point in the doctrine’s development, M The requirement that patented products be marked first that patented products be The requirement 23. 26. 30. 22. Eugene Goryunov & Mark Polyakov, 28. Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437, 1443 (Fed. Cir. 1998). 29. 25. 24. 27. 20. 21. Patent Act of 1861 replaced the statutory penalty with the require- replaced the statutory penalty Patent Act of 1861 damages un- today: that patentees may not recover ment that exists employing the patent was marked. less the product (2007). in 1836. Congress altered the requirements so that patentees needed to mark Congress altered the requirements instead of the date of the patent. the patent number on the product Act, there was a statutory penalty of “not less than one hundred dol- statutory penalty of “not less than Act, there was a by a patent. mark a product that was covered lars” for failing to noted that “[c]onstructive notice is possible by ‘marking’ any patented noted that “[c]onstructive notice is primarily to lower costs for patentees, as well as to permit easier primarily to lower costs for patentees, marking on smaller products. ment of the America Invents Act of 2011. ment of the America Invents Act producers of products that include technology on which a patent issues after the product 284 (2011). Patent Act of 1842 . . . .”). exists today”; the piece was published in 2007). way for the public to take notice of issued patents. way for the public 1998)). duced a number of revisions to the patent system, including the intro- duced a number of revisions to the duction of virtual marking. articulated the three main purposes of the marking requirements: “1) articulated the three main purposes . . . 2) encouraging patentees to helping to avoid innocent infringement article is patented . . . and 3) aiding give notice to the public that the article is patented.” the public to identify whether an originated with the Patent Act of 1842, which required that patentees Patent Act of 1842, which required originated with the with only the dates of their patents. mark their products the Patent Marking Statute to Websites and the Internet In 1952, Congress allowed patentees to abbreviate “Patent” to “Pat.” In 1952, Congress allowed patentees on marked products. B. T 112 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 6 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 61 Side B 12/15/2020 11:16:45 12/15/2020 B 61 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 62 Side A 12/15/2020 11:16:45 S. 36 37 See, Pat- 113 Virtual , see also ILLS 35 M the primary fo- 32 ENERAL 34 on the Internet . . . that by the Federal Circuit: the con- by the Federal Circuit: posting . at 52-53. These benefits primarily work 33 See id , https://www.yeti.com/en_US/patents.html; LG, , https://business.tivo.com/about-us/licensing (last vis- Patents , ENSURING PROPER NOTICE ENSURING ETI . 112-98, at 52. O Part V. . N ” , https://www.generalmills.com/pat (last visited Aug. 22, 2020); LBP, EP Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437, 1443 (Fed. Cir. 1998). Based on this language, we can understand virtual marking we can understand virtual Based on this language, Tivo Corp. Legal Center , See See infra . 111-18, at 14 (2009). OSTING 31 , https://www.lbpmfg.com/patents/ (last visited Aug. 22, 2020). O IVO The virtual marking statute provides that patentees may mark The virtual marking statute provides Armed with the background and general framework within which Armed with the background and general . N 33. 138 F.3d 1437 (Fed. Cir. 1998). 34. 32. allow The primary benefits of patent virtual marking are to reduce costs and 36. 35 U.S.C. §37. 287(a) (2013) (emphasis added). Many companies that use virtual marking seem to have reserved a specific 35. 31. H.R. R , T , https://www.lg.com/us/patent (last vistied Aug. 22, 2020); G EP M K without virtual marking, they would still be able to see patent numbers on products. article that the patent holder (or its licensee) makes, uses, sells or im- holder (or its licensee) makes, article that the patent ports.” R cus should be the first two purposes of patent marking articulated in first two purposes of patent marking cus should be the associates the patented article with the number of the patent.” associates the patented article with structive notice must be both sufficiently adequate to help members of be both sufficiently adequate structive notice must enough that pat- innocent infringers and simple the public avoid being to provide this notice. entees are encouraged for patentees; members of the public are not substantially affected by this change— ited Aug. 22, 2020); Y for easier marking of small products. webpage for their patented products, and this page is marked on their products. their products by “fixing thereon the word ‘patent’ or the abbreviation their products by “fixing thereon the a ‘pat.’ together with an address of as a means for providing constructive notice.as a means for that virtual Noting to primarily benefit the patentee, marking appears e.g. ent Patent Marking Patents A. “P “posting” means a single webpage, Many patentees appear to believe marking on smaller products.”); is on the market, and will facilitate effective III. AMBIGUITIES IN THE VIRTUAL MARKING STATUTE operate, we can begin to examine the virtual marking requirements terms in the marking statute: the issues with the specific ambiguous “posting” and “associates.” As this Part illustrates, the term “posting” a posting, as well as to what is unclear as to what exactly constitutes are permissible.extent downtime and modifications The term “associ- to connect a patented product ates” is unclear as to what is required what, if any, limit should be placed with the patent number, as well as of patents.on products covered by large numbers Later, Part V ar- to resolve these issues. gues for interpretations that seek 2020] Stores, Inc. Nike, Inc. v. Wal-Mart \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 7 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 62 Side A 12/15/2020 11:16:45 12/15/2020 A 62 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 62 Side B 12/15/2020 11:16:45 M K C Y the United 40 , [Vol. 54 National See 35 U.S.C. § 287(a) (re- cf. While the court declined to rule While the court declined 41 , 2019 WL 1034321, at *16 (“The parties do not appear to However, this view is not completely unchal- However, this view Given the variety of reasons why a patentee Given the variety of reasons why 38 CREIGHTON LAW REVIEW 43 illustrates, this is a real point of confusion for at illustrates, this is a real point of note 12, at 14 (“Section 287(a) requires only that virtual mark- note 12, at 14 (“Section 287(a) requires only supra National Products, Inc. v. Arkon Resources, Inc. National Products, , (“Out of curiosity, the Court attempted to access the ‘Patents and Trade- EE Nat’l Prods., Inc. v. Arkon Res., Inc., No. CV 18-02936 AG, 2019 WL L In is likely not alone either. 42 39 See Nat’l Prods., Inc. See id. See id. See See An additional issue raised by the term “posting” is the transience An additional issue raised by the One can understand why a company may want to direct visitors to why a company may want to direct One can understand 39. 42. 43. 40. No. CV 18-02936 AG, 2019 WL 1034321 (C.D. Cal. Jan. 9, 2019). 41. 38. parties disputed whether using the patentee’s primary website ad- whether using the patentee’s primary parties disputed adequate notice a specific address for patents, was dress, rather than marking statute. to comply with the States v. Mead Corp., 533 U.S. 218, 220 (2001) (noting that “an agency’s interpretation and may merit some deference whatever its form, given the ‘specialized experience broader investigations and information’ available to the agency”). and the United States Patent and Trademark Office (“USPTO”) seems Patent and Trademark Office and the United States to share this belief. quiring “a posting on the Internet, accessible to the public without charge”).quiring “a posting on the Internet, accessible this While in a report on virtual marking, a court interpretation was provided fairly informally when interpreting the statute. might nevertheless offer it some deference on the adequacy of notice in this case, the court did go out of its way to of notice in this case, the court did on the adequacy on the patentee’s of locating the patents page point out the difficulty website. dispute that . . . [the patentee] marks at least some of [its] products with the word can ‘PATENTED’ and the URL of [the patentee’s homepage] . . . [and that] any person access the website, but has to additionally navigate to a ‘Patents and Trademarks’ page of the website to see a listing of [the patentee]’s patents.”). lenged. homepage, the plaintiff in might wish to direct users to its least one patentee. ing Web pages be ‘accessible to the public without charge.’”);ing Web pages be ‘accessible to the public marks’ page from [the patentee]’s website’s home page, but did not find any links on the marks’ page from [the patentee]’s website’s home page, but did not find any links on the homepage that directly linked to such a webpage, which is apparently nested under link ‘Legal.’”). 1034321, at *16 (C.D. Cal. Jan. 9, 2019) (discussing a product which is marked with the 1034321, at *16 (C.D. Cal. Jan. 9, 2019) (discussing a product which is marked with patentee’s primary website URL as opposed to a specific page for patents). of webpages: specifically, that websites can be changed very easily, of webpages: specifically, that websites its homepage rather than a page specifically for patents.its homepage rather than a page Directing patentee to advertise its product of- visitors to a homepage allows the the patentee may not be able to ferings, sales, and promotions, which patents.do on a specific page dedicated to Additionally, the URL for contain fewer characters than a the homepage would necessarily be easier to fit the homepage ad- longer URL for patents, so it could dress on a smaller product. Finally, using the homepage could allow the web developer changed its rout- for more flexibility if, for example, would then not need to rede- ing scheme for the website; the patentee URL for patents.sign its products with a different Further, as Products National Products 114 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 8 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 62 Side B 12/15/2020 11:16:45 12/15/2020 B 62 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 63 Side A 12/15/2020 11:16:45 115 but the statute or what the per- Another way of 46 48 49 note 5, at 373-74 (“To recover under the marking The inference is that this same standard The inference is supra note 5, at 374 (“If Congress amends § 287 to permit vir- note 5, at 396 (noting that downtime “could be a violation note 5, at 395-96 (flagging potential issues with down- note 5, at 395-96 (flagging potential issues 45 supra supra supra ENSURING PROPER NOTICE ENSURING ” McCaffrey, Part V. Without someone litigating the issue, patentees may not litigating the issue, patentees may Without someone (“One issue is how much modification, in form or content, is permissible 50 Traditional patent marking is governed by a “consistent Traditional patent 47 McCaffrey, 35 U.S.C. § 287(a) (2013) (listing no requirements for handling downtime McCaffrey, McCaffrey, note 5, at 374 (noting that § 287 does not fully define the marking require- see also 44 See See See id. See infra See See SSOCIATES In light of these issues, a clear definition of “posting” should indi- In light of these issues, a clear definition The virtual marking statute provides that patentees may mark The virtual marking statute provides supra 46. 47. 45. Inc., 138 F.3d 1437, 1446 (Fed. Cir. 1998) (“In Nike, Inc. v. Wal-Mart Stores, 49. 50. 48. 44. M K and are also prone to downtime (e.g., due to maintenance, errors, or to downtime (e.g., due to maintenance, and are also prone attacks). missible extent and frequency of modifications is. missible extent and does not fully define the requirements for patentees wishing to virtu- the requirements for patentees does not fully define ally mark. them through the lens of notice: framing these questions is to consider much downtime or improper modifi- is there a certain point where too cations cause notice to be inadequate? a single webpage, or if a website cate whether patentees must use with multiple pages is permissible. Additionally, it should provide to ensure they are not operat- some benchmark for enabling patentees impermissible modifications. ing with too much downtime or making a definition consistent with Part V provides an analysis and proposes these goals. statute, patentees must satisfy the requirement that marking be ‘consistent and contin- uous.’ Courts have developed this standard because § 287 does not expressly define what is required to comply with the marking statute.”). would apply to virtually marked products as well, would apply to virtually tual marking, courts will have the challenge of determining what form of virtual mark- ing complies with the consistent-and-continuous standard under the statute.”). time and modifications of virtual marking sites). time and modifications of virtual marking of the marking statute, [the patentee] order to satisfy the constructive notice provision must . . . show[ ] that substantially all of the [products] being distributed were marked, was substantially consistent and con- and that once marking was begun, the marking tinuous.”); of the ‘continuous’ element of the compliance standard,” but also that “[a] certain amount of downtime may be acceptable”). their products by “fixing thereon the word ‘patent’ or the abbreviation their products by “fixing thereon the a posting on the Internet . . . that ‘pat.’ together with an address of know how much downtime is considered acceptable, know how much downtime under the ‘consistent’ element of the compliance standard.”). and continuous” standard, meaning that a patentee must mark its standard, meaning that a patentee and continuous” with the and continuously to be in compliance products consistently marking requirements. on virtual marking sites or managing changes to a site’s marking information); McCaf- frey, ments for patentees). B. “A 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 9 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 63 Side A 12/15/2020 11:16:45 12/15/2020 A 63 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 63 Side B 12/15/2020 11:16:45 M K C Y Un- 51 [Vol. 54 Accord- 53 For example, 54 but without an appellate 57 , 397 F. Supp. at 578 (“[T]he website does nothing to note 5, at 395 (noting that “[p]atentees currently face note 5, at 395 (noting that “[p]atentees currently Theoretically, a user could list hundreds of pat- Theoretically, a The one district court to face this issue held this The one district court to face this CREIGHTON LAW REVIEW supra note 12, at 22 (listing a number of ways in which virtual mark- , https://www.lg.com/us/patent (last visited Aug. 20, 2020). 52 56 Wherever the line is drawn, it seems unlikely that Wherever the line is drawn, it supra Patent , Mfg. Res. Int’l, Inc. v. Civiq Smartscapes, LLC, 397 F. Supp. 3d 560, , 58 (“[T]here is no official limit on the number of patents that patentees can (“[T]here is no official limit on the number at 394-95 (“Allowing patentees to list thousands of patent numbers with EE McCaffrey, L the patented article with the number of the patent.” the patented article LG, One can imagine that it may be difficult for a potential in- that it may be difficult for a One can imagine See, e.g. See Civiq Smartscapes See See See id. See id. See 55 The issues presented by the ambiguity in the terms “posting” and The issues presented by the ambiguity Additionally, some patentees who virtually mark their products patentees who virtually mark Additionally, some 58. 53. 56. 57. 54. 55. 51. 35 U.S.C. § (2013) (emphasis added). 287(a) 52. like physical products, there are no space constraints on a virtual there are no space constraints like physical products, marking webpage. ing to one commentator, this is not adequate notice. ing to one commentator, LG’s virtual marking page lists 626 patents for a single product, the page lists 626 patents for a LG’s virtual marking other products as with large numbers of patents for “Optim G E970,” well. determination, other patentees may continue to organize their sites in determination, other patentees may this manner. In fact, many patent owners who are using virtual with patent numbers in dif- marking are “associating” their products ferent ways. ‘associate’ any of 112 patents with any of the 46 identified covered products . . . . This is insufficient as a matter of law to meet the requirements of virtual marking under § 287.”). practical limits dictated by the space available on physical products, whereas a website practical limits dictated by the space available has theoretically limitless length.”). method of marking to be inadequate notice, method of marking to be inadequate ents and be in compliance with the marking requirements. ents and be in compliance ing is employed, ranging from providing only a list of patent numbers to pairing patent numbers with specific products and including links to the patents themselves). every implementation of a virtual marking site will sufficiently associ- every implementation of a virtual ate a product with its patent numbers. As a result, the law should “associate” a product with a patent seek to clarify what it means to number. not like those presented by tradi- “associates” for virtual marking are only the word “Patent” (or an tional patent marking, which requires 576 (D. Del. 2019) (noting that the patentee’s site “labels the listed patents as ‘LCD by display patents’ and states, ‘one or more of the above listed . . . patents may be used [the patentee’s] products’” without identifying any specific products). list under traditional marking law, but there is a de facto limit due to space constraints list under traditional marking law, but there on the physical product. . . . Courts have not yet considered how many patent listings on a product can reasonably convey notice under either traditional or virtual marking . . . .”). no guidance for the public does not provide adequate notice.”). fringer to effectively evaluate its product against a list of that size. evaluate its product against fringer to effectively offerings, but instead list all do not distinguish among their product patents they own. 116 associates \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 10 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 63 Side B 12/15/2020 11:16:45 12/15/2020 B 63 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 64 Side A 12/15/2020 11:16:45 61 Part 117 Part III.A. See infra Lessons from 60 supra Constructive notice is Constructive notice . 747, 754-55 (2019) (discussing 59 EV L. R Part III.B. LARK supra & C The Transformative Potential of Digital Media & By contrast, the issues surrounding the By contrast, the issues surrounding EWIS 62 , 23 L ENSURING PROPER NOTICE ENSURING Part IV. OTICE , Burkart v. Bucher, 2 Binn. 455, 460 (Pa. 1810) (holding that in the , Burkart v. Bucher, 2 Binn. 455, 460 (Pa. N 35 U.S.C. § patentees include on the product “the 287(a) (requiring that Gaston v. Dashiell, 55 Tex. 508, 510 (1881) (“Registration notice is only of Caroline Desmond, Note, See infra See See See See, e.g. While each notice category has some specific contours that are While each notice category has some IGITAL NOTICE Questions of digital notice have previously appeared in the con- Questions of digital notice have previously To evaluate the adequacy of the constructive notice provided adequacy of the constructive notice To evaluate the 63 61. 63. 62. 60. 59. M K abbreviation of it) and the patent number. abbreviation of it) IV (discussing how these areas of the law treat constructive notice questions—specifi- cally those of digital notice and registration notice). these other areas of the law can provide some key touchstones regard- of the law can provide some key these other areas will in- adequate notice, and these touchstones ing what constitutes statutory terms. of how to define the ambiguous form the analysis not unique to patent law, however, and courts have grappled with no- law, however, and courts have not unique to patent centuries in other areas of the law. tice questions for challenges in the class-action context with “digital notice,” or the notice provided by challenges in the class-action context with “digital notice,” or the notice provided “digital methods currently proposed as supplemental or constructive forms of notice”). For a discussion of the issues surrounding the term “posting,” see term “associates” raise questions of registration notice, or in other term “associates” raise questions the specific information pro- words, notice questions about whether put the public on notice of the pat- vided in the notice is sufficient to ent. real property context, “[w]here a purchaser cannot make out a title, but by a deed which leads him to another fact,” the purchaser is on constructive notice of the fact); Living- ston v. Roosevelt, 4 Johns. 251, 251 (N.Y. Sup. Ct. 1816) (suggesting that newspaper the notice regarding the dissolution of a partnership is sufficient constructive notice of dissolution). Many other areas of the law employ constructive notice standards, includ- ing trademark law, copyright law, real property law, and contract law. word ‘patent’ or the abbreviation ‘pat.’, together with the number of the patent”). word ‘patent’ or the abbreviation ‘pat.’, together the existence and contents of the instrument recorded.”). For a discussion of the issues surrounding the term “associates,” see relevant to the analysis of virtual marking, the general theme is that relevant to the analysis of virtual looking for the information in ques- notice is adequate when someone to find it. tion could reasonably be expected A. D tract and real property law contexts, and the way these areas of the tract and real property law contexts, how notice can be achieved law answer these questions can illuminate Technology on Class Actions 2020] IV.AND REGISTRATION OF DIGITAL NOTICE PRINCIPLES to other areas of the law that re- under virtual marking, we can look quire notice in various contexts. The issues surrounding the term notice, or in other words, notice “posting” raise questions of digital in context from a physical product questions that arise from the shift to a digital environment. \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 11 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 64 Side A 12/15/2020 11:16:45 12/15/2020 A 64 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 64 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 . 1981) (“A con- . 180, 184 (2016) N NST . O I The question of When the terms of AW 66 ECH 69 . L 68 M § 3:4 (4th ed. 2019) (“Whether §1 (A §1 Virtual marking tends to focus ONTRACTS , 18 N.C. J.L. & T 67 C ONTRACTS C at 397 (evaluating users’ notice of the terms of an OF . ) ILLISTON ON ECOND , W (S Requiring Mutual Assent in the 21st Century: How to Modify , 97 F. Supp CREIGHTON LAW REVIEW ORD For a contract to form, there must be a “meeting of For a contract to 64 A. L Berkson , ESTATEMENT R Matt Meinel, Mfg. Res. Int’l, Inc. v. Civiq Smartscapes, LLC, 397 F. Supp. 3d 560, 577 (D. ICHARD Berkson v. Gogo LLC, 97 F.Supp.3d 359, 385 (E.D.N.Y. 2015) (“Reasonable Berkson v. Gogo LLC, 97 F.Supp.3d 359, See See See See See, e.g. A party’s assent can be implied by conduct, but only if the party A party’s assent can be implied by In the internet context, users typically indicate assent to terms by In the internet context, users typically Generally, contract law concerns private agreements between two law concerns private agreements Generally, contract 65 65. 1 R 66. 68. 67. 69. 64. through virtual marking. that the Specifically, contract law teaches appearance, and notice often hinges on context and adequacy of digital often more clearly contained within a single page that information provides notice. prolonged law also teaches that even Real property of notice in cer- the data does not preclude a finding unavailability of tain circumstances. (“In clickwrap agreements, users are presented with the actual terms of the agreement and are required to click ‘I agree’ in order to proceed with the transaction. Because the consumer makes a purposeful action to assent after clear notice of terms, clickwraps tract may consist of a single promise by one person to another, or of mutual promises by tract may consist of a single promise by one be, indeed, any number of persons or any two persons to one another; or there may number of promises.”). whether a party has digital notice comes up with some regularity in whether a party has digital notice other clickwrap agreements, and the context of “terms of service” and a user has notice of specific these questions typically involve whether terms or information on webpages. there is mutual assent to the terms of a contract is determined by an objective test, there is mutual assent to the terms of a parties.”). rather than the subjective intentions of the on the same type of inquiry, but with the information in question be- on the same type of inquiry, but with terms. ing a patent number instead of contract in-flight wi-fi service); Cullinane v. Uber Technologies, 893 F.3d 53, 62 (1st Cir. 2018) (evaluating whether a user of a ride-sharing app had reasonable notice of the app’s terms of service); Meyer v. Uber Technologies, Inc., 868 F.3d 66, 78 (2d Cir. 2017) (same); Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 367 (E.D.N.Y 2009) (evaluat- ing whether a user had notice of the terms of use for an online retailer’s website). the minds,” or in other words, mutual assent to the terms of the of- the minds,” or in other words, mutual fer. Del. 2019) (framing the virtual marking inquiry as whether a user has notice that “the product is associated with the patent, even where a patentee may use a single website to mark multiple products.”) notice must be given prior to the acts constituting acceptance.notice must be given prior to the acts constituting is The conduct of a party unless he intends to engage in the conduct not effective as a manifestation of consent and knows or has reason to know that the other party may infer from his conduct that he assents.”). has reasonable notice of the offer and its terms. has reasonable notice of the offer checking a box or clicking a button that says, “I agree,” “I accept,” or checking a box or clicking a button agreement. some other similar phrase indicating or more parties. Wrap Contracts to Reflect Consumer’s Reality 118 1. Contract Law \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 12 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 64 Side B 12/15/2020 11:16:45 12/15/2020 B 64 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 65 Side A 12/15/2020 11:16:45 74 119 see also, the Uber app provided a hyper- For example, in one case, a court For example, in 75 , 70 The court strongly emphasized that the The court strongly emphasized that 77 ENSURING PROPER NOTICE ENSURING , 893 F.3d at 59. , 841 F. Supp. 2d at 835 (“[C]licking [a] hyperlinked phrase is the , 925 F.3d 1076, 1083-84 (9th Cir. 2019) (holding that user was bound , Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 838 (S.D.N.Y. 2012) , Fteja v. Facebook, Inc., 841 F. Supp. 2d , 309 F. Supp. 2d at 451 (“Plaintiff claims that, because so little of the The court emphasized that the user “had a full and fair that the user “had a full and The court emphasized , 893 F.3d at 62 (holding that a user of a ride-sharing app did not have 73 Novak v. Overture Servs., Inc, 309 F. Supp. 2d 446, 451 (E.D.N.Y. 2004) Novak v. Overture Servs., Inc, 309 F. Supp. In so holding, the court rejected the argument that the dis- court rejected the argument that In so holding, the 72 at 62-63. 71 In holding that users did not have notice of the contract’s In holding that users did not have Cullinane Id. See, e.g. See Novak Id. See Fteja In re Holl , 97 F. Supp. 3d at 404 (holding that users of in-flight wi-fi service were not 76 This inquiry becomes more complicated when users are presented This inquiry becomes more complicated Cullinane Cullinane v. Uber Technologies 77. 71. 73. 72. 75. 893 F.3d 53 (1st Cir. 2018). 76. 74. 70. , M K the offer are listed on the same page as this assent mechanism, courts on the same page as this assent the offer are listed is adequate. often hold that notice link to the company’s terms of service during the user registration pro- link to the company’s terms of service cess. held that users had notice of the license terms when those terms were notice of the license terms when held that users had as the acceptance window on the same page provided in a scrollable button. to terms despite the need to click multiple links and exercise “web-browsing intuition”); twenty-first century equivalent of turning over the cruise ticket. In both cases, the con- sumer is prompted to examine terms of sale that are located somewhere else.”); (quoting Grosvenor v. Qwest Commc’ns Int’l, Inc., No. 09–cv–2848, 2010 WL 3906253, Inc., No. 09–cv–2848, (quoting Grosvenor v. Qwest Commc’ns Int’l, cases consistent with the rule that “a click- at *2 (D. Colo. Sept. 30, 2010)) (describing appear on the same screen with the wrap is valid where the terms of the agreement and proceed with the installation of the button the user must click to accept the terms product”). reasonable notice of the app’s terms of service when the terms were hyperlinked on the reasonable notice of the app’s terms of service when the terms were hyperlinked on screen); contract was viewable at a time, the . . . clause must be unenforceable. The Court disagrees.”). opportunity to read the entire document,” and that “no time limitation the entire document,” and that opportunity to read the terms and opportunity to scroll through limited [the user]’s conditions.” (internal citations omitted) (“Prior to registration for access to the [service], Plaintiff (internal citations omitted) (“Prior to registration must accept the [service’s terms and conditions]. On this page is a window for viewing a button to indicate acceptance of the terms the “terms and conditions” contract and contained therein.”). puted clause, which was three hundred lines into the terms, would be was three hundred lines into the puted clause, which only ten lines at the window of terms showed difficult to find because one time. terms, the First Circuit considered a number of facts specific to that terms, the First Circuit considered color contrasts, and placement of app, including the number of words, other elements on the page. bound to terms despite a textual statement in small font above the “next” button during registration). with a link directing them to another page containing the terms, al- with a link directing them to another a finding of adequate notice. though the link alone does not preclude e.g. Berkson In assent and are therefore enforceable ‘expressly and unambiguously manifest’ contracts.”). 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 13 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 65 Side A 12/15/2020 11:16:45 12/15/2020 A 65 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 65 Side B 12/15/2020 11:16:45 M K C Y 78 [Vol. 54 Had the 79 In this case, 81 Despite the fact that 83 84 , 868 F.3d at 78 (“[T]he hyper- However, the Second Cir- However, the Second 80 , 841 F. Supp. 2d at 835 (quoting 82 Fteja see also Meyer ; Id. CREIGHTON LAW REVIEW , 868 F.3d at 78 (considering a number of factors including the place- , 893 F.3d at 63. , 925 F.3d at 1083 (“The user must access the UPS My Choice Service at 63-64 (“Though not dispositive, the characteristics of the hyperlink at 63-64 (“Though not dispositive, the characteristics (“Although the sentence is in a small font, the dark print contrasts with at 63. Notably, several other courts have also emphasized the “common (“We cannot say, with ‘definite and firm conviction,’ that the district court In re Holl Id. Cullinane See id. See Meyer See id. Id. In another case, the Ninth Circuit considered the terms of UPS’s In another case, the Ninth Circuit 79. 82. 84. 80. 81. 83. 78. hyperlink was not blue and underlined, as most hyperlinks are, but blue and underlined, as most hyperlink was not white bold text.” “in a gray rectangular box in rather was displayed hyperlinks been more conspicuous, it is likely the court may have held conspicuous, it is likely the court hyperlinks been more of the license terms. users to be on notice though, the hyperlinks were blue and underlined, and the screen was were blue and underlined, though, the hyperlinks required no scrolling. “uncluttered” and multiple steps and “web-browsing intuition” were required to locate multiple steps and “web-browsing held that users were on notice of the clause at issue, the district court affirmed. those terms, and the Ninth Circuit links are in blue and underlined.”); Adelson v. Harris, 774 F.3d 803, 808 (2d Cir. 2014) links are in blue and underlined.”); Adelson in the customary manner, that is, by (“[T]he hyperlinks were not hidden but visible being embedded in blue, underlined text.”); cuit conducted a similar factual inquiry a year earlier and held that similar factual inquiry a year earlier cuit conducted a sufficient notice of the terms. Uber’s app did provide United States v. Hair, 178 Fed. Appx. 879, 882 n.3 (11th Cir. 2006)) (“The phrase ‘Terms United States v. Hair, 178 Fed. Appx. 879, the phrase is a hyperlink, a phrase that is of Service’ is underlined, an indication that users who click on it directly to a new ‘usually highlighted or underlined’ and ‘sends location—usually a program of some sort.’”). an internet address or ment of elements on the page, lack of need for scrolling, and the color of the hyperlink). Terms via the enrollment page’s hyperlink, potentially after following the first hyper- link to the 96-page Technology Agreement. The user must then read the UPS My and Choice Service Terms and understand that they incorporate the UPS Tariff/Terms Conditions of Service. Because the My Choice Service Terms do not include hyperlinks to the incorporated documents, the user must visit the full ups.com website, intuitively and find the Service Terms and Conditions link at the bottom of the webpage, select it, locate yet another link to the UPS Tariff/Terms and Conditions of Service.”). raise concerns as to whether a reasonable user would have been aware that the gray raise concerns as to whether a reasonable . . .rectangular box was actually a hyperlink. Even though the hyperlink did possess conspicuous, the presence of other terms some of the characteristics that make a term size, typeface, and with more noticeable on the same screen with a similar or larger attributes diminished the hyperlink’s capability to grab the user’s attention. If every- thing on the screen is written with conspicuous features, then nothing is conspicuous.”). the bright white background, and the hyperlinks are in blue and underlined.”). appearance of a hyperlink” as well. erred by finding the incorporation valid.”). “My Choice” tracking service, which required the user to click through “My Choice” tracking service, which to reach the terms, and the terms one (and sometimes two) hyperlinks which were not hyperlinked at all incorporated another agreement website. and only available on UPS’s primary 120 items on the page the existence of several other It also pointed out font.” capital letters and dark colored that were in “large \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 14 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 65 Side B 12/15/2020 11:16:45 12/15/2020 B 65 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 66 Side A 12/15/2020 11:16:45 , 121 But 85 seem to 88 cf. Cullinane However, there This can include 86 89 , 925 F.3d at 1083 (finding notice (11th ed. 2019). These agreements typi- (11th ed. 2019). with In re Holl §§ 1213, 1215 (West 1989)) (“[E]very ‘conveyance’ of ICTIONARY ICTIONARY Id. D 92 ODE D AW . C AW , 893 F.3d at 62 (finding notice inadequate because the , 893 F.3d at 62 (finding notice inadequate L IV L S ’ S ’ While real property law is a broad area of the law, While real property law is a broad . C ENSURING PROPER NOTICE ENSURING , 893 F.3d at 63-64 (discussing how deviating from the typical , 893 F.3d at 63-64 (discussing how deviating AL 90 LACK LACK , 868 F.3d at 79 (“As long as the hyperlinked text was itself reasona- , 868 F.3d at 79 (“As long as the hyperlinked , B , B , Citizens for Covenant Compliance v. Anderson, 906 P.2d 1314, 1320 and keeping the screen relatively uncluttered and keeping the When a property owner records a servitude, the recorda- When a property owner records 87 Meyer v. Uber Technologies, Inc., 868 F.3d 66, 78 (2d Cir. 2017) (noting the Meyer v. Uber Technologies, Inc., 868 F.3d 91 Compare Cullinane See Cullinane See Property Id. Covenant See, e.g. See Meyer The key inquiry in these types of cases appears to be whether the these types of cases appears to The key inquiry in Real property law generally concerns itself with “[l]and and any- Real property law generally concerns 89. 87. 90. 88. 86. 91. 92. 85. M K 893 F.3d at 63 (“The inclusion of the additional payment option and the placement of a 893 F.3d at 63 (“The inclusion of the additional the screen were more attention-grabbing and large blue PayPal button in the middle of screen.”). displaced the hyperlink to the bottom of the as these cases illustrate, what is reasonably conspicuous can depend what is reasonably conspicuous as these cases illustrate, and court in a particular case. on the specific facts existence of the terms was reasonably conspicuous to the user. was reasonably conspicuous existence of the terms be fairly accepted ways to ensure adequate digital notice. ways to ensure adequate digital be fairly accepted seem to be some relatively safe principles for providing adequate no- relatively safe principles for providing seem to be some and underlined is used; specifically, using blue tice if a hyperlink hyperlinks corporeal property (e.g., land and buildings) and incorporeal property corporeal property (e.g., land and (e.g., easements). adequate even though some terms were not hyperlinked at all). adequate even though some terms were not cally appear in a deed or lease. real property recorded as prescribed by law provides ‘constructive notice’ of its contents to subsequent purchasers. The term ‘conveyance’ is broadly defined to include ‘every instrument in writing . . . by which the title to any real property may be affected’”); Genovese Drug Stores, Inc. v. Connecticut Packing Co., 732 F.2d 286, 290 (2d Cir. 1984) (“The traditional rule is that a purchaser or lessee of property is charged with construc- tive notice only of those encumbrances that appear in his direct chain of title.”); Emrick v. Multicon Builders, Inc., 566 N.E.2d 1189, 1193 (Ohio 1991) (“In determining whether the purchaser had constructive notice, we held that since the encumbrance was never recited in any deed in the chain of title, the purchaser could not be charged with con- structive notice.”); Cole v. Seamonds, 104 S.E. 747, 750 (W. Va. 1920) (“[T]he authorities are uniform in holding that actual notice of the restriction is not essential, but that hyperlink was not conspicuous enough), constructive notice typically appears in the context of equitable servi- constructive notice typically appears govern the use or occupancy of real tudes, or private agreements that property. blue and underlined format for hyperlinks “raise[d] concerns as to whether a reasonable blue and underlined format for hyperlinks user would have been aware” it was a hyperlink). bly conspicuous—and we conclude that it was—a reasonably prudent smartphone user would have constructive notice of the terms.”). (Cal. 1995) (quoting C tion generally serves as constructive notice to potential purchasers of tion generally serves as constructive the servitude’s existence. “blue and underlined” hyperlinks and “uncluttered” nature of the screen); “blue and underlined” hyperlinks and “uncluttered” thing growing on, attached to, or erected on it.” thing growing on, attached to, or 2020] 2. Real Property – Servitudes Equitable \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 15 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 66 Side A 12/15/2020 11:16:45 12/15/2020 A 66 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 66 Side B 12/15/2020 11:16:45 M K C Y May- [Vol. 54 the deed in 94 , CREIGHTON LAW REVIEW This rule is not unique to Florida law; Georgia and This rule is not unique to Florida , 95 So.3d at 400 (“[I]n the . . . electronic official records, the corre- , 95 So.3d at 400 (“[I]n the . . . electronic Mayfield v. First City Bank of Florida Mayfield v. First , Leeds Bldg. Prods., Inc. v. Sears Mortg. Corp., 477 S.E.2d 565, 568 , Mayfield v. First City Bank of Fla., 95 So.3d 398, 400 (Fla. Dist. Ct. , Mayfield v. First City Bank of Fla., 95 So.3d 96 In at 402-03. As a result, it appears that even long gaps in the availability As a result, it appears that even 93 See, e.g. Mayfield Id. See, e.g. While “recogniz[ing] the harshness of the result,” the court held the harshness of the result,” the While “recogniz[ing] 97 . The concept of digital notice often appears in the real property notice often appears in the The concept of digital 95 96. 94. 2012). 95 So.3d 398 (Fla. Dist. Ct. App. 95. 97. 93. context when a servitude is recorded correctly, but an error by the servitude is recorded correctly, but context when a title during a title from appearing in the chain of clerk prevents it search. question was properly recorded, but disappeared from the county’s recorded, but disappeared question was properly due to a clerk’s er- after only seventy-three minutes electronic records ror. many other jurisdictions have produced similar holdings as in many other jurisdictions have produced sponding book and page numbers showed that the documents were voided . . . . Thus, sponding book and page numbers showed 73 minutes on July 6, 2006, the . . . deed and except for a brief period of approximately records of [the county].”). . . . mortgage did not appear in the official App. 2012) (evaluating whether purchaser had constructive notice of a deed that ap- App. 2012) (evaluating whether purchaser disappearing). peared in the official record briefly before (Ga. 1996) (“A majority of jurisdictions have recognized that a defect in the acknowledg- the ment of an instrument required for recordation, which is not apparent on the face of instrument, does not prevent the recordation from providing constructive notice to sub- 222 sequent bona fide purchasers.”); Kendall v. J.I. Porter Lumber Co., 64 S.W. 220, er- (Ark. 1901) (holding that constructive notice attached to covenants despite a clerk’s ror because “the recorder was required to record them, and when filed for record they were constructive notice of their contents to all persons.”); Columbia Gas Transmission Corp. v. Bennett, 594 N.E.2d 1, 6 (Ohio 1990) (“Failure to discover an instrument within the chain of title, even though improperly recorded by a county recorder, will not negate constructive notice.”); Miller v. Simonson, 92 P.3d 537, 541 (Idaho 2004) (“The Idaho recording statute clearly establishes that once an instrument has been acknowledged, certified, and presented for recording it provides constructive notice to all subsequent by purchasers regardless of whether the instrument is thereafter properly recorded county officials or not.”). of digital records may not necessarily preclude a finding of adequate of digital records may not necessarily providing the notice acted in accor- digital notice, so long as the person dance with the relevant requirements. This principle could be of par- that the recordation provided constructive notice because “construc- provided constructive notice that the recordation statute,” and upon compliance with the recording tive notice attaches remain in the offi- that the “documents had to no requirement existed cial record.” field constructive notice is sufficient.”); Earl v. Pavex, Corp., 313 P.3d 154, 166 (Mont. 2013) constructive notice is sufficient.”); Earl v. on constructive notice of recorded servitudes (“[W]e hold that a prospective purchaser is and prior owners of the parcel in question and encumbrances granted by the existing owner held title to the parcel.”); Federoff v. during the respective periods when each 104, 108 (Ariz. 1990) (“Under the rules of Pioneer Title & Tr. Co. of Ariz., 803 P.2d is charged with notice of any equitable cove- constructive notice, a successor in interest and for which the successor is re- nant that is properly recorded in a prior instrument quired to search. must The successor takes the property bound by the covenant and comply with it.”). 122 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 16 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 66 Side B 12/15/2020 11:16:45 12/15/2020 B 66 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 67 Side A 12/15/2020 11:16:45 98 123 Re- 101 Under the 100 , 514 U.S. at 162, 174. Registration also provides na- Qualitex Co. 102 OTICE ENSURING PROPER NOTICE ENSURING N Part V.A.2. A “mark” typically refers to words and logos, but can refer to A “mark” typically refers to words See infra 15 U.S.C. § a cause of action for mark owners against 1114 (2005) (providing EGISTRATION 99 Generally speaking, trademark law prevents others from copying Generally speaking, trademark law In addition to the questions of digital notice, questions of registra- questions of digital notice, questions In addition to the 99. Co., 514 U.S. 159, 163 (1995) (noting that “[i]n Qualitex Co. v. Jacobson Prods. 98. 101. 15 U.S.C. §(“The owner of a trademark used in commerce 1051(a)(1) (2002) 102. 15 U.S.C. § that registration serves as “prima facie evi- 1115 (2002) (providing 100. 15 U.S.C. § term “trademark” includes any word, name, sym- 1127 (2005) (“The M K ticular relevance to virtual patent marking, where information may to virtual patent marking, where ticular relevance of the patentee. despite the best efforts occasionally be unavailable gistration carries numerous benefits, including demonstrating prima gistration carries numerous benefits, to the registrant the exclusive facie validity of the mark and granting right to use the mark in commerce. Lanham Act, Congress has authorized mark owners to register their Lanham Act, Congress has authorized and Trademark Office. marks with the United States Patent may request registration of its trademark on the principal register hereby established by paying the prescribed fee and filing in the Patent and Trademark Office an applica- and tion and a verified statement, in such form as may be prescribed by the Director, the such number of specimens or facsimiles of the mark as used as may be required by Director.”). to dence of the validity of the registered mark . . . and of the registrant’s exclusive right use the registered mark in commerce on or in connection with the goods or services specified in the registration”). tionwide constructive notice to the public of the registrant’s claim of tionwide constructive notice to the principle, trademark law . . . prevent[s] others from copying a source-identifying mark”); principle, trademark law . . . prevent[s] others any word, name, symbol, or device that indicates source. any word, name, symbol, or device any person who “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive”). bol, or device, or any combination thereof . . . .”). This language has been interpreted to include shapes, sounds, fragrances, and colors. or using a “mark” that indicates the source of another’s goods or ser- or using a “mark” that indicates vices. tion notice have previously appeared in the trademark, copyright, and appeared in the trademark, tion notice have previously contexts.real property law these areas While the case law in each of be provided in theme is that the notice must is nuanced, the general reasonably be seeking the information would such a way that someone in the notice.able to recognize the facts located Furthermore, real notice does not extend when the property law teaches that registration an unreasonable effort to identify searcher would need to undertake notice. the information contained in the see also 1. Trademark 2020] B. R \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 17 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 67 Side A 12/15/2020 11:16:45 12/15/2020 A 67 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 67 Side B 12/15/2020 11:16:45 R M K C Y [Vol. 54 In cases RADEMARKS T One illus- 109 108 (“This means that a ARTHY ON C Id. C , M 104 ARTHY C C M In other words, instead of mark- In other words, 106 HOMAS .” ® In order to recover post-registration dam- In order to recover 105 a few examples illustrate what seems to be the a few examples illustrate what seems , 2017 WL 497678, at *1. note 39 and accompanying text. § 19:144 (5th ed. 2019).damages for acts that occur pre- Any CREIGHTON LAW REVIEW symbol to place the public on notice of the mark’s symbol to place the public on notice 107 ® supra However, registrants are still required to provide addi- are still required to provide However, registrants , AGSouth Genetics, LLC v. Georgia Farm Servs., LLC, No. , Reebok Int’l Ltd. v. Su Youn Pak, No. 87 CIV. 2727 (TPG), 1989 WL OMPETITION 103 Nat’l Prods., Inc. v. Arkon Res., Inc., No. C15-1553RSL, 2017 WL 497678, Nat’l Prods., Inc. v. Arkon Res., Inc., No. 15 U.S.C. § suit for infringement under this chapter 1111 (1988) (“[I]n any C AND Nat’l Prods., Inc. See, e.g. See, e.g. See See NFAIR While there is “surprisingly little case law” on the adequacy of While there is “surprisingly little The trademark notice requirement is very similar to the patent requirement is very similar The trademark notice U 107. 108. 109. 105. 103. U.S.C. § 15 . . . 1072 (1946) (“Registration of a mark on the principal register 104. 106. U.S.C. § 15 1111. or This statutory notice is required to recover any profits ownership. where a registered mark appears on clothing or other accessories, where a registered mark appears of the registration on the neck courts have held that providing notice even though it may not accom- label or price tag is sufficient notice, trative example relates to marks used on clothing items. trative example relates to marks trademark owner can sue under Lanham Act § 43(a) for damages from infringing acts occurring prior to registration unaffected by the notice requirement and under Lanham Act § 32(1) for damages for acts post-registration so long as the notice requirement is met.”). ing the product with a patent number, a mark owner is marking the a patent number, a mark owner ing the product with product with the ages in an infringement suit for a registered trademark, the mark suit for a registered trademark, ages in an infringement in U.S. Pat- the mark with “the words ‘Registered owner must display Off.’ or the letter R Office’ or ‘Reg. U.S. Pat. & Tm. ent and Trademark circle, thus enclosed within a common thread: registration notice is adequate if a member of the common thread: registration notice could reasonably be expected to public, upon examining the product, was registered. recognize that the mark on the product registration do not require this registration notice and can be brought under a Lanham Act § 43(a) action for infringement of an unregistered mark. registration. trademark notice, 1:09–CV–186 (WLS), 2013 WL 5774698, at *9 (M.D. Ga. Oct. 24, 2013) (placing empha- 1:09–CV–186 sis on whether “any observer would be placed on sufficient notice of the protected status of the mark”). tional notice to the public of their registration to recover damages for public of their registration to recover tional notice to the after the mark is registered. actions occurring 76225, at *3 (S.D.N.Y. June 30, 1989) (discussing Reebok’s use of registration symbols the on the neck label and hang tags of garments, but only sometimes in the designs of garments). by such a registrant failing to give such notice of registration, no profits and no damages by such a registrant failing to give such notice this chapter unless the defendant had actual shall be recovered under the provisions of notice of the registration.”). “the trademark notice provision is similar at *1 (W.D. Wash. Feb. 7, 2017) (noting that to that found in patent law”). same Note that this case is distinct from the case with the name discussed in marking requirement. shall be constructive notice of the registrant’s claim of ownership thereof.”). shall be constructive notice of the registrant’s as part of a Lanham Act §damages for acts that occur post-registration 32 claim for infringement of a registered mark. 3 J. T 124 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 18 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 67 Side B 12/15/2020 11:16:45 12/15/2020 B 67 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 68 Side A 12/15/2020 11:16:45 125 symbol on “a subset of symbol on “a subset ® Additionally, one court has Additionally, one 110 In that case, the court noted that the In that case, the 113 , 2013 WL 5774698, at *9. ., 2017 WL 497678, at *1. ENSURING PROPER NOTICE ENSURING When a protectible work is created, the author of the When a protectible work is created, Typical examples are literary, musical, and dramatic Typical examples are literary, musical, , 1989 WL 76225, at *3 (“Affixing the notice of registration to plain- 115 Instead, the emphasis should be on whether “any ob- should be on whether “any Instead, the emphasis In a third example, however, notice was held to be in- however, notice was held to be In a third example, but rather, “did so in an inconsistent and wholly insuffi- but rather, “did so in an inconsistent Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 117 116 111 112 see 114 at *3 (quoting Am. Med. Sys., Inc. v. Med. Eng’g Corp., 6 F.3d 1523, 1538 ; AGSouth Genetics Id. Nat’l Prods., Inc Id. Id. Id. See Reebok At a high level, copyright law seeks to protect “original works of At a high level, copyright law seeks As these cases illustrate, the main theme in these inquiries ap- As these cases illustrate, the main 112. 114. 111. 115. 113. 116. 17 U.S.C. §117. 102(a) (1990). 110. M K pany the mark on the product itself. pany the mark on marketing materials and on a subset of the product representations and on a subset of the product marketing materials within those materials.” held that the registration notice need not appear “directly adjacent to notice need not appear “directly held that the registration the mark.” mark owner did not “consistently mark[mark owner did all of its ] substantially unmarked and . . . no longer distribut[ed] [trademarked] products, products,” work gains several exclusive rights, including the rights to reproduce work gains several exclusive rights, the work publicly, and create the work, distribute the work, perform tiffs’ trademarks, whether on the garment itself or on a tag, is adequate notice of such WL registration.”); Coach, Inc. v. Citi Trends, Inc., No. CV 17-4775-DMG (KSx), 2019 1940622, at *6 (C.D. Cal. Apr. 5, 2019) (“[The mark owner] provides the constructive registration language on its goods’ price tags . . . . That is adequate under section 1111 to put [a defendant] on notice.”). works, but any work “fixed in [a] tangible medium of expression” can works, but any work “fixed in [a] be protected. server would be placed on sufficient notice of the protected status of placed on sufficient notice of the server would be the mark.” mark owner included the sufficient when a 887 (2019) (noting that prominent types of original works of authorship include “liter- ary, musical, and dramatic works”). cient manner.” (Fed. Cir. 1993)). authorship.” pears to be whether it would be reasonable for a member of the public pears to be whether it would be reasonable product, that the mark on the prod- to see, when encountering a given uct was registered. It is probably reasonable to expect someone to see tag even if it is not marked on the a registration symbol on a price good itself. Similarly, it is probably reasonable to expect someone to not located directly adjacent to the see the registration symbol even if mark itself. Conversely, it is probably unreasonable to expect some- it only appears in some marketing one to see a registration symbol if products within those materials. materials, and only on some of the 2. Copyright 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 19 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 68 Side A 12/15/2020 11:16:45 12/15/2020 A 68 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 68 Side B 12/15/2020 11:16:45 M K C Y see 122 (2017), [Vol. 54 OTICE N 120 OPYRIGHT , 139 S. Ct. at 887 (“Upon , C FFICE O note 120, at 1. supra , OPYRIGHT see also Fourth Est. C FFICE O TATES S While courts have interpreted this requirement While courts have interpreted this OPYRIGHT When another person or entity attempts to exer- When another person In addition, the notice must be placed “on copies In addition, the notice must be placed CREIGHTON LAW REVIEW NITED Notice is optional for works published on or after Notice is optional C U 124 118 123 121 17 U.S.C. §§ 302-303 (1998). a result, many works protected by As However, in some cases, authors are required to put cases, authors are required to However, in some 125 TATES , Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852-53 (2d Cir. , 139 S. Ct. at 887. at 1. S In most cases, the duration of a copyright is the life of the author plus See 119 , the year of first publication of the work, and the name of the publication of the work, and the name , the year of first at 2. NITED © Id. See, e.g. See generally See id. See id. Currently, for works published before March 1, 1989, copyright published before March 1, 1989, Currently, for works 121. 120. 124. 123. U 119. U.S.C. § 17 the 501 (2019) (“Anyone who violates any of the exclusive rights of 122. 125. 118. 17 U.S.C. § to 106 (2002) (providing copyright holders with the exclusive rights https://www.copyright.gov/circs/circ03.pdf. derivative works. registration of the copyright . . . a copyright owner can recover for infringement that registration of the copyright . . . a copyright occurred both before and after registration.”). in various ways, the general trend is clear: like with trademark law, in various ways, the general trend is adequate focuses on whether a the determination of whether notice be expected to know that a work potential infringer could reasonably is copyrighted. or phonorecords in a way that [is] permanently legible to an ordinary or phonorecords in a way that [is] concealed from view upon reasona- user of the work and could not be ble examination.” cise one of these rights, the author may bring suit for copyright in- rights, the author may bring suit cise one of these fringement. March 1, 1989, but the requirements are nevertheless illustrative. the requirements are nevertheless March 1, 1989, but copyright are still governed by the notice requirement; as of 2020, this would include any work published before March 1, 1989 by an author who is still living or who died after the year 1950. potential infringers on notice in order to bring a suit. potential infringers 1967) (quoting Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 402, 409 (2d 1967) (quoting Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 402, 409 Cir. 1946)) (“‘The purpose of a copyright notice is to prevent innocent persons who are by unaware of the existence of the copyright from incurring the penalties of infringers making use of the copyrighted work.’ In keeping with this purpose, courts generally, and particularly those of this circuit, have afforded protection to one who has substan- tially complied with [the statutory notice requirements].”) copyright owner . . . is an infringer of the copyright or right of the author, as the case copyright owner . . . is an infringer of the may be. . . . is The legal or beneficial owner of an exclusive right under a copyright infringement of that particular right commit- entitled . . . to institute an action for any ted while he or she is the owner of it.”); seventy years. copyright owner. owners must provide notice of their copyright in order to bring an in- notice of their copyright in order owners must provide fringement suit. also Fourth Est. reproduce the copyrighted work, prepare derivative works, distribute copies of the work, reproduce the copyrighted work, prepare derivative display the copyrighted work publicly); perform the copyrighted work publicly, and 126 the copyright notice consists of three elements: Effective copyright symbol \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 20 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 68 Side B 12/15/2020 11:16:45 12/15/2020 B 68 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 69 Side A 12/15/2020 11:16:45 127 127 In one 132 In one case, a 126 Similarly, for author However, the court held The purpose of copyright 129 131 133 130 the United States Court of Appeals for the the United States 128 ., 373 F.2d at 852-53 (“In keeping with this purpose, courts ENSURING PROPER NOTICE ENSURING 135 , Videotronics, Inc. v. Bend Elecs., 586 F. Supp. 478, 481 (D. Nev. 1984) , 837 F.2d at 266. The Second Circuit has also held that any location is suffi- The Second Circuit has also held Coventry Ware, Inc. v. Reliance Picture Frame Co., 288 F.2d 193, 195 (2d (“Once [the chip is] removed, the copyright notice would be clearly visible, See Uneeda Doll Co Forry Id. See See, e.g. Id. See id. 134 Several key cases illustrate this common thread. Several key cases In addition to including the three elements of notice, copyright In addition to including the three 132. 17 U.S.C. §133. 401(c) (1988). 127. 134. 135. 126. 128. 129. 266 (6th Cir. 1988) (“[I]f a ‘C’ in a Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 130. Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Con- 131. M K case, a copyright owner included the notice on the bottom of a com- case, a copyright owner included visible when the chip was attached puter chip, and the notice was not chip. to the circuit board employing the court held that notice was adequate when a copyright holder provided was adequate when a copyright court held that notice symbol. of a hexagon in place of the copyright the letter “C” inside names, the United States Court of Appeals for the Second Circuit has States Court of Appeals for the names, the United stated party on a still be adequate “even when the held that notice can copyright notice is not precisely correct.” that this location was acceptable because the chip would need to be that this location was acceptable for the copyrighted program to be removed from the board in order copied. notice is to “prevent innocent persons who are unaware of the exis- notice is to “prevent innocent persons and courts seem to focus on tence of the copyright” from infringing, met. whether this purpose is substantially Sixth Circuit has offered that it may indeed be sufficient while af- offered that it may indeed be Sixth Circuit has holder “substan- court holding that the copyright firming a district the [notice] statute.” tially complied with generally, and particularly those of this circuit, have afforded protection to one who has generally, and particularly those of this circuit, have afforded protection to one who substantially complied with [the statutory notice requirements].”). (holding that the letter “C” enclosed inside of a hexagon, instead of the required circle, (holding that the letter “C” enclosed inside element). was sufficient to satisfy the copyright symbol Cir. 1961) (“[The notice statute] should not be read to impose a restriction on placement which, had it been intended by Congress, would certainly have been expressly stated.”). cient so long as it notifies anyone seeking to copy the work of the copy- cient so long as it notifies anyone right’s existence. and so . . . the location of the notice sufficiently complied with [the notice requirements].”). holders are required to include the notice “in such manner and loca- holders are required to include the the claim of copyright.” tion as to give reasonable notice of hexagon is sufficient, an argument exists that a ‘C’ in parentheses is sufficient.”). temp. Dance, Inc., 380 F.3d 624, 645 (2d Cir. 2004) (holding that a copyright notice the listing a dance center as the copyright owner was sufficient regardless of whether copyright was formally assigned to the dance center). 2020] inside parenthe- Office has suggested that a “C” While the Copyright ses may be insufficient, \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 21 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 69 Side A 12/15/2020 11:16:45 12/15/2020 A 69 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 69 Side B 12/15/2020 11:16:45 M K C Y 139 [Vol. 54 real property For instance, if 138 144 § 82.01[4] (2020) (“Whether 137 Even outside of the in- Even outside of the 136 ROPERTY P EAL R OWELL ON , P This rule does have restrictions, however; in This rule does have restrictions, OLF CREIGHTON LAW REVIEW 143 W 140 specifically, whether a potential purchaser would specifically, whether a potential In applying this general rule, courts tend to focus on In applying this general rule, courts Parts IV.A.1-2. Part IV.A.2. note 92. LLEN Part IV.A. Part IV.B.3. 142 , Spring Lakes, Ltd. v. O.F.M. Co., 467 N.E.2d 537, 540 (Ohio 1984) , Sabo v. Horvath, 559 P.2d 1038, 1039 (Alaska 1976) (holding that “a 141 , Excel Willowbrook, L.L.C. v. JP Morgan Chase Bank, Nat. Ass’n, 758 , Excel Willowbrook, L.L.C. v. JP Morgan , Beach v. Faust, 40 P.2d 822, 823 (Cal. 1935) (noting that the purpose A ICHAEL See supra See, e.g. See, e.g. See supra See infra See supra See, e.g. See supra See, e.g. As with trademark law, it appears the common theme here is law, it appears the common As with trademark This common thread is illustrated in cases that hold even when a This common thread is illustrated While relevant to questions about digital notice, While relevant to 14 M 143. 139. 141. 138. 137. 144. 140. 142. 136. whether it is reasonable for a potential infringer to know that a work for a potential infringer to whether it is reasonable is copyrighted. to dovetail with the common thread This theme seems trademark notice cases. that underpins the law also addresses questions relating to registration notice for equita- questions relating to registration law also addresses ble servitudes. While an equitable servitude typically binds the origi- also bind a successor in interest if nal parties to the agreement, it can notice of the servitude. the successor has actual or constructive tellectual property regimes, this common thread still seems to hold regimes, this common thread tellectual property in the real property context. true, particularly the purchaser, in the process of [a title] search, has the burden of locating all documents that have been deposited for record, even if not properly recorded, will vary from state to state. . . . [I]n many states a subsequent purchaser is considered to have constructive particular, purchasers are often not deemed to have constructive no- particular, purchasers are often not a deed that does not appear in the tice in the case of a “wild deed,” or chain of title. reasonably be expected to know of a servitude’s existence in the prop- reasonably be expected to know of erty’s chain of title. a common thread quite like that of the trademark and copyright notice a common thread quite like that of requirements: of recording laws “is to protect those who honestly believe they are acquiring a good title, and who invest some substantial sum in reliance on that belief”). (holding that a purchaser does not take notice of a covenant occurring in another con- veyance by the same grantor). Notably, this is not a uniform rule in all jurisdictions. F.3d 592, 601 n.26 (5th Cir. 2014) (“Equitable servitudes run against a successor in F.3d 592, 601 n.26 (5th Cir. 2014) (“Equitable interest even where there is no privity of estate, if the successor has actual or construc- tive notice.”). deed recorded outside the chain of title is a ‘wild deed’ and does not give constructive notice”). servitude appears indirectly in the property’s chain of title, purchas- servitude appears indirectly in the of the servitude. ers may still not be held on notice See The nuances of various state laws can differ, but the general rule is The nuances of various state laws constructive notice to subse- that a duly recorded servitude provides quent purchasers. 128 3. Real Property – Equitable Servitudes \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 22 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 69 Side B 12/15/2020 11:16:45 12/15/2020 B 69 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 70 Side A 12/15/2020 11:16:45 a 129 147 , is not held to have C Hancock v. Gumm with a covenant, and the with a covenant, B with no covenant, with no covenant, C 146 ’s covenant, even though the parcel was shared ’s covenant, even B note 144, at § 82.01; Hancock v. Gumm, 107 S.E. 872, 877 (Ga. ENSURING PROPER NOTICE ENSURING , 107 S.E. at 877. supra , 40 P.2d at 823 (noting that the purpose of recording laws “is to , The rationale behind this rule seems to be protecting The rationale behind OLF 145 W conveys half of Blackacre to conveys half of Thus, there is a line at which a search that, while possible, Thus, there is a line at which a search A See Beach See Hancock See 148 Overall, understanding digital notice and registration notice Overall, understanding digital As with trademark and copyright law, it appears that the ade- and copyright law, it appears As with trademark 146. 147. 107 S.E. 872 (Ga. 1921). 148. 145. M K purchaser could theoretically search through all subsequent titles purchaser could theoretically search not required to do so for notice pur- from the original grantor, she is poses. grantor constructive notice of constructive notice other half of Blackacre to other half of Blackacre originally. 1921) (“[W]here a recorded deed to a lot forming part of a larger tract contains restric- tive covenants, which by the terms of the deed are not only to apply to the lot conveyed, not but, as in this case, to other lands of the grantor, a purchaser of one of the lots is charged with notice of the covenant contained in a prior deed from the common grantor to another lot or parcel of the general tract.”). protect those who honestly believe they are acquiring a good title, and who invest some substantial sum in reliance on that belief”); Glorieux v. Lighthipe, 96 A. 94, 96 (N.J. re- 1915) (“A purchaser may well be held bound to examine or neglect at his peril, the cord of the conveyances under which he claims; but it would impose an intolerable bur- of den to compel him to examine all conveyances made by every one in is [sic] chain title.”). purchasers who have made a good faith effort to ensure they are ob- made a good faith effort to purchasers who have in an unreasonable by not requiring them to engage taining good title or burdensome inquiry. becomes unreasonable. real property law, trademark law, through the lenses of contract law, of what constitutes adequate and copyright law informs the analysis notice in the virtual marking context. The common thread across all if it would be reasonable to expect areas of the law is reasonableness; fact upon observing the website or someone to take notice of a certain product, notice is likely adequate. In the patent context, this likely for a potential infringer, upon means that if it would be reasonable to recognize which patents going to the URL marked on a product, is adequate.cover the product, then the notice The interpretations of therefore embody this theme. the ambiguous statutory terms will quacy of notice in the real property context centers on whether it in the real property context centers quacy of notice the equitable servi- for a purchaser to encounter would be reasonable tude in the chain of title. In particular, the limits on what a purchaser must search are notable. While in cases like notice of only those interests that are recorded within the grantor’s chain of title. . . .notice of only those interests that are recorded In but may include all transactions regard- other jurisdictions the search is not so limited, less of the date on which they are recorded.”). of However, the cases are still illustrative a common view of what constitutes adequate notice. 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 23 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 70 Side A 12/15/2020 11:16:45 12/15/2020 A 70 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 70 Side B 12/15/2020 11:16:45 R M K C Y 149 151 [Vol. 54 35 U.S.C. § 287(a) (re- cf. 154 While this interpreta- 153 , https://www.lexico.com/en/definition/ EXICO , L note 37. However, if some patentees choose to create Posting , ” supra . RESS CREIGHTON LAW REVIEW note 12, at 14 (“Section 287(a) requires only that virtual mark- This Part argues that the appropriate boundary This Part argues that the appropriate This definition implies that a posting is a webpage; This definition implies that a posting . P OSTING 150 NIV Part III Part III.A. 152 supra “P , U EE United States v. Mead Corp., 533 U.S. 218, 220 (2001) (noting that “an L sources cited in XFORD See See See supra See supra See EFINING In light of the issues presented by the statutory ambiguities dis- presented by the statutory ambiguities In light of the issues The question is, then, whether one of the relevant purposes of pat- The question is, then, whether one The first challenge presented by the term “posting” is whether it The first challenge presented by 154. 153. 151. Under this standard, one page for all patent products would be sufficient to 149. 150. 152. O V. TERMS DEFINITIONS FOR THE STATUTORY PROPOSING seek to provide this Part argues that the law should cussed in Part III, “associates.” for the terms “posting” and clearer interpretations quiring “a posting on the Internet, accessible to the public without charge”). tion is informal and not binding, a court may accord it some persua- tion is informal and not binding, interpretation. sive weight as an administrative posting (last visited Aug. 20, 2020). ing Web pages be ‘accessible to the public without charge.’”); for posting is a single dedicated webpage that is not the homepage. for posting is a single dedicated webpage a website with many pages is analogous to a blog or forum, which con- a website with many pages is analogous would then qualify as “postings” tains multiple posts and pages (these under the dictionary definition). In addition to the dictionary defini- Trademark Office (“USPTO”) has tion, the United States Patent and seemed to equate “posting” with “webpage.” meet the requirements, and this appears to be what many patentees are doing cur- rently. agency’s interpretation may merit some deference whatever its form, given the ‘special- ized experience and broader investigations and information’ available to the agency”). ent marking, either adequacy of notice or incentives for the paten- ent marking, either adequacy of should be confined to a single webpage, or if it can be a website with should be confined to a single webpage, multiple pages. individual pages for each product, they could certainly do so under this standard, as individual pages for each product, they could certainly do so under this standard, long as the URL marked on the product matched the page specific to that product. 1. Setting the Boundary for “Posting” of posting is “a message, link, im- The relevant dictionary definition such as a blog, social media web- age, etc., posted to an online location site, or forum.” 130 specifically, it interpretations for those two terms; This Part proposes and that “asso- should mean a single webpage, proposes that “posting” patented product to explicitly connect the specific ciates” should mean of the patents used in the product.with the number it ar- Further, would require to the statutory language, which gues for an addition each patent on the both the number and title of patentees to include virtual marking webpage. A. D \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 24 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 70 Side B 12/15/2020 11:16:45 12/15/2020 B 70 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 71 Side A 12/15/2020 11:16:45 va- 131 ARKING M patent.’”). the IRTUAL V Here, the question v. Arkon Resources, . EPORT ON 156 Inc , R , FFICE O RADEMARK While the court in this case declined to While the court in this case declined & T National Products 160 ATENT , 2019 WL 1034321, at *16 (“Out of curiosity, the Court at- it is fair to conclude that this notice was not ade- it is fair to conclude that this notice ENSURING PROPER NOTICE ENSURING , 136 S. Ct. 1923 (2016) (“[T]he plain language of the marking , 136 S. Ct. 1923 (2016) (“[T]he plain language 161 Part II. Part IV. In discussing the patentee’s marking strategy, the In discussing the patentee’s marking (citing U.S. P 159 Nat’l Prods., Inc. v. Arkon Res., Inc., No. CV 18-02936 AG, 2019 WL Stryker Corp. v. Zimmer, Inc., 782 F.3d 649, 660 n.5 (Fed. Cir. 2015), Stryker Corp. v. Zimmer, Inc., 782 F.3d 157 for example, the patentee directed users to its website for example, the patentee directed Nat’l Prods. Inc. See id. See supra See supra See See should outweigh the definition and agency interpretation of the definition and agency interpretation should outweigh 158 On the other hand, there may be circumstances in which a web- On the other hand, there may be It is likely that allowing patentees to mark products with the ad- patentees to mark products It is likely that allowing , 155 158. No. CV 18-02936 AG, 2019 WL 1034321 (C.D. Cal. Jan. 9, 2019). 159. 161. 156. 157. 160. 155. M K tee, is whether a potential infringer would take notice that a specific prod- infringer would take notice is whether a potential patent that it not just any patent but the specific uct is covered by utilizes. decide this issue, tempted to access the ‘Patents and Trademarks’ page from [the patentee]’s website’s a home page, but did not find any links on the homepage that directly linked to such webpage, which is apparently nested under the link ‘Legal.’”). quate. at all, it cer- If a court could not locate the patent information a specific product was covered by a tainly could not take notice that specific patent. A similarly situated potential infringer would likely does not seem appropriate to treat experience the same issue, and it they would normally not be able to them as being on notice of patents locate. the user to a page for patents.site homepage does clearly direct In of the link could create a difficult these cases, however, the placement line-drawing exercise for courts. Must the patentee place the link to bar at the top of the page? patent information in the main navigation statute provides that the patented article be marked with the ‘number of court noted that it could not find the specific page containing patents court noted that it could not find that the patent information from the homepage; it later discovered was nested under “Legal.” 1034321, at *16 (C.D. Cal. Jan. 9, 2019) (discussing product which is marked with the 1034321, at *16 (C.D. Cal. Jan. 9, 2019) (discussing product which is marked with patentee’s primary website URL as opposed to a specific page for patents). homepage. “posting.” ade- trademark and copyright law, Taking lessons from be reasonable to be judged by whether it would quacy of notice should take notice of a certain fact. expect someone to dress of their website homepages could create a situation where notice homepages could create a situation dress of their website is not always adequate. In cated on other grounds Inc. (Sept. 2014), https://www.uspto.gov/sites/default/files/aia_implementation/VMreport. pdf (“The Court finds this to be an intriguing issue. But the Court finds that on the current record, [the alleged infringers] have failed to meet their burden of adequately raising the issue for summary adjudication. Particularly if the issue truly is one of first on impression, placing legal limits on what constitutes marking would be inappropriate such a significantly limited record.”). 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 25 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 71 Side A 12/15/2020 11:16:45 12/15/2020 A 71 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 71 Side B 12/15/2020 11:16:45 M K C Y 164 [Vol. 54 courts would State v. Zuanich, 593 162 see also It is quite possible that some- Given the variety of outcomes in Given the variety 168 163 It is difficult to justify, then, a broad 167 However, these interests likely do not out- However, these interests likely do 165 at 1443. . CREIGHTON LAW REVIEW note 12, at 22 (listing a number of ways in which virtual mark- Part II.C. Part IV.D (discussing courts’ interpretations of notice requirements Part IV.B. , 138 F.3d supra , . (concluding that, while there are some guiding principles available, EE L As a result, it already tends to favor one of the main purposes As a result, it already tends to favor See supra See id See supra See supra Nike, Inc. See 166 Without Congress, the USPTO, or the Federal Circuit adopting Without Congress, the USPTO, or When considering the patentee’s interests, a broader interpreta- When considering the patentee’s 165. 163. 167. Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437, 1443 (Fed. Cir. 1998). 168. 164. 166. 162. Is it sufficient to include the link in the site’s footer?Is it sufficient to What about the page?other locations on ways that Given the number of different to virtually mark their products, patentees choose likely have to engage in a number of facts-and-circumstances analyses in a number of facts-and-circumstances likely have to engage given page. notice was adequate for a to determine whether These in clickwrap con- could look a lot like the inquiries factual inquiries the existence of courts seek to determine whether tract cases, where conspicuous. terms is reasonably P.2d 1314, 1324 (Wash. 1979) (en banc) (Stafford, J., dissenting) (noting the contrast between “[s]pecificity and clarity” and “future case by case definition by the judiciary”). one who is unable to ascertain whether a patent covers a certain one who is unable to ascertain on that patent. product might later innocently infringe will still be required to provide ade- this boundary, however, patentees quate notice and could potentially do so under a broader interpreta- tion. law, a hyperlink to additional contract terms does In contract those cases, this could be a barrier to creating clarity for patentees. could be a barrier to creating clarity those cases, this interpretation that marginally advances that same goal, but perhaps interpretation that marginally advances purpose of patent marking: “help- at the expense of another primary ing to avoid innocent infringement.” weigh the dictionary definition, agency interpretation, and adequacy- weigh the dictionary definition, agency discussed because the availability of-notice considerations previously primarily to create benefits for of virtual marking is already designed and easier marking on small prod- the patentee, such as cost savings ucts. ing is employed, ranging from providing only a list of patent numbers to pairing patent numbers with specific products and including links to the patents themselves). in the context of clickwrap “terms of service agreements”). questions of this type can be difficult for courts to answer); of patent marking: “encouraging patentees to give notice to the public of patent marking: “encouraging patentees that the article is patented.” 132 cuts toward set- the adequacy-of-notice factor also It seems, then, that given the risk for inadequate ting the boundary at a single webpage, line-drawing exercises if a differ- notice and the potential for difficult ent interpretation is used. benefits to the patentee, such tion of “posting” may provide additional characters in the address, and flexi- as marketing opportunities, fewer bility in website design. \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 26 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 71 Side B 12/15/2020 11:16:45 12/15/2020 B 71 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 72 Side A 12/15/2020 11:16:45 171 133 But 170 A similar 169 (Feb. 15, 2019), https://smallbiz- This situation is analogous to RENDS 174 . T US B MALL , S Specifically, how much downtime, if any, is Specifically, how much downtime, Websites Average 3 Hours of Host Downtime a Month, How 172 ENSURING PROPER NOTICE ENSURING Part IV.A.1. Part III.A. Part IV.D. Real property law teaches that there are instances when Real property law teaches that there Michael Guta, According to one study, even the most reliable hosting 173 See supra See id. See id. See supra See id. See supra See 175 The reality is that most websites experience some level of down- The second challenge posed by the term “posting” is the tran- The second challenge posed by the 170. 173. 175. 169. 171. 172. 174. M K not necessarily preclude digital notice of the terms, so long as the exis- digital notice of the terms, not necessarily preclude user. is reasonably conspicuous to the tence of the terms even in contract law, a single webpage containing both the terms and even in contract law, a single webpage treated much more favorably by the the assent mechanism seem to be occur in the patent context. courts, and the same would likely standard could be used to evaluate virtual marking sites; if the exis- used to evaluate virtual marking standard could be conspicu- patent information would be reasonably tence of a page with infringer could be infringer, then perhaps that ous to a potential product is marked notice of the patents, even if the treated as being on homepage URL.with the patentee’s were to be If such a standard homepages un- would be well-served to keep their adopted, patentees to point to the pat- blue and underlined hyperlinks cluttered and use these factors in as courts seemed to look for ent information, in the contract law context. particular when evaluating notice trends.com/2019/02/web-hosting-uptime-statistics.html (“The latest research from Host- website downtime; in both cases, an error makes it practically impos- website downtime; in both cases, take notice of a certain fact.sible for a member of the public to The cases, a government official primary difference is that in the property error, but in virtual marking cases, (the clerk) is responsible for the for the error.the patentee could be responsible This distinction because patentees are often not should not be dispositive, however, directly responsible for downtime on their sites. time, often caused by outages at the website owner’s hosting pro- vider. permissible, and what types of modifications are allowed to be made to permissible, and what types of modifications the site? a search may not be practically possible, for example, when the clerk a search may not be practically possible, errs in recording a deed or covenant. sience of webpages. Does Your Business Site Fare? Thus, patentees seeking certainty should consider limiting their “post- Thus, patentees seeking certainty absence of a formal interpretation ings” to a single page, even in the Federal Circuit. by Congress, the USPTO, or the 2. Website Transience 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 27 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 72 Side A 12/15/2020 11:16:45 12/15/2020 A 72 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 72 Side B 12/15/2020 11:16:45 M K , C Y some While See, e.g. [Vol. 54 178 177 IRTUALIZATION , V Id. 182 (suggesting that applications with “criti- See id. Given this fact, websites often measure Given this fact, Part IV.D, a requirement that a system be up with- 176 However, it would be appropriate to use the However, it would be appropriate How Many Nines of Uptime Do You Need? 181 see supra CREIGHTON LAW REVIEW Unsurprisingly, this increased availability comes at a this increased availability comes Unsurprisingly, Bd. of Trs. of Fla. State Univ. v. Am. Bioscience, Inc., 333 F.3d 1330, (“Continuous processing system suppliers like Stratus Technologies (“The extra cost will probably be reasonable, considering the criticality (“If we step back for a moment to consider the uptime seen with typical (“If we step back for a moment to consider 179 . (June 1, 2015), https://virtualizationreview.com/articles /2015/06/01/how- . (June 1, 2015), https://virtualizationreview.com/articles ex rel. Dan Kusnetzky, EV R Id. See See id. See id. See id. 180 Determining what balance of cost and uptime is most appropriate balance of cost and uptime is most Determining what LOUD 182. The patent system contains other provisions that tend to work against parties 179. 180. 181. Systems with five or six nines are often deemed appropriate or desirable for 177. 178. 176. Bd. of Educ. services advertise the availability of five or six nines for certain criti- the availability of five or six nines services advertise cal systems. the industry standard uptime is somewhere below two nines, uptime is somewhere below the industry standard provider still experienced forty-five minutes of downtime over the forty-five minutes of provider still experienced at approximately 2018, with the average coming in course of the year three hours of downtime. cal[ ] . . . workloads” should consider incurring the extra cost for high availability). Even a system with six nines would incur approximately 30 seconds of downtime per year. not Especially given the principle from real property cases that consistent availability is unequivocally necessary, their uptime (i.e., lack of downtime) as a function of “nines.” lack of downtime) as a function of their uptime (i.e., out interruption would completely swallow the virtual marking option. who act in bad faith, so such an exception would not be wholly unprecedented. “nines” metric to set a standard for virtual marking website availabil- “nines” metric to set a standard for ity. the USPTO, courts, or After some additional study, Congress, number of “nines” that would al- other scholars could offer a baseline in virtual marking cases.low for constructive notice to attach Courts for bad faith on the part of might also consider adding an exception indicating that a patentee willfully the patentee; if there is evidence for a significant period of time, took down its virtual marking page inclined to say that a patentee pro- courts may be understandably less to the public. vided adequate notice of its patents cost. 1344 (Fed. Cir. 2003) (“[P]atents have in the past been held unenforceable for failure to 1344 (Fed. Cir. 2003) (“[P]atents have in the past been held unenforceable for failure correctly name inventors in cases where the named inventors acted in bad faith or with industry standard (x86-based) physical systems, 95 percent to 99 percent uptime is a industry standard (x86-based) physical systems, pretty common range.”). state that their hardware-based systems offer 99.9999 percent (6 nines) of uptime and state that their hardware-based systems offer 99.9999 percent (6 nines) of uptime their software-based solutions offer 99.999 percent (5 nines) of uptime.”). of certain workloads.”). even the most critical applications. many-nines-of-uptime-do-you-need.aspx (providing an assessment of the implications of many-nines-of-uptime-do-you-need.aspx (providing concept of “nines” refers to the percentage of the “nines” concept on system uptime). The for example, two “nines” would mean an up- time during which a website is available; an uptime of 99.9%. time of 99% and three “nines” would mean for virtual marking sites is beyond the scope of this article. sites is beyond the scope of this for virtual marking It would a virtual marking site be available not be appropriate to require that without interruption. ing Facts has revealed the average website is down three hours a month due to the ing Facts has revealed the average website downtime of web host providers.”). & C 134 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 28 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 72 Side B 12/15/2020 11:16:45 12/15/2020 B 72 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 73 Side A 12/15/2020 11:16:45 135 35 U.S.C. See These patentees would In these cases, proving 187 186 note 12, at 17. supra note 5, at 369 (“Patentees must change their marks when note 5, at 369 (“Patentees must change their supra ENSURING PROPER NOTICE ENSURING , 138 F.3d at 1447 (citing Maxwell v. J. Baker, Inc., 86 F.3d 1098, Preventing changes to virtual marking sites, or impos- Preventing changes at 396 (“To get the maximum benefit from virtual marking, patentees On the other hand, if changes occur too frequently and it if changes occur too frequently On the other hand, de Rassenfosse, 183 so a failure to appropriately track when and what modifi- track when and what so a failure to appropriately McCaffrey, 184 See 185 See See id. Nike, Inc. For modifications, it is important to note that one of the key bene- it is important to note that one of For modifications, While this article generally argues for interpretations that pro- While this article generally argues 187. One scholar has suggested that patentees are “significantly more likely to use 184. 186. Under current law, the term of a patent is twenty years. 185. 183. M K fits of virtual marking is that it permits patentees to quickly modify is that it permits patentees fits of virtual marking expiration of an issuance of a new patent, or the their sites upon the old patent. § the “grant [of a patent] shall be for a term beginning 154(a)(2) (2015) (providing that the on the date on which the patent issues and ending 20 years from the date on which a application for the patent was filed in the United States or, if the application contains specific reference to an earlier filed application . . . from the date on which the earliest such application was filed.”). Theoretically, then, a patentee with a single patent could leave its website untouched for twenty years, until the patent expires. virtual marking if they have a large patent portfolio,” so this may be the most likely scenario. that the website did not change could be very easy; including the date that the website did not change could the page could very well be suffi- that the site was last updated on cient. of patents, it may find However, if a patentee owns thousands often. itself changing its site much more their patents expire or become invalid in the course of litigation. But high manufactur- their patents expire or become invalid in the their marks cheaply and efficiently.ing costs prevent patentees from changing Virtual their marks as quickly and easily as posting marking would enable patentees to change to a blog or sending an e-mail message.”). 1111 (Fed. Cir. 1996)) (noting that “compliance with the marking statute is a question of 1111 (Fed. Cir. 1996)) (noting that “compliance with the marking statute is a question the fact, and the burden of proving compliance with the marking statute is upon patentee”). ing heavy restrictions on those changes, would severely undercut that on those changes, would severely ing heavy restrictions purpose. should be permitted to modify their sites liberally.”). is not clear when the patent information became available on the vir- the patent information became available is not clear when notice might nevertheless be inadequate.tual marking site, But pat- with the marking of establishing compliance entees bear the burden statute, cations are made to the site would ultimately impact a patentee’s abil- cations are made to the site would ity to obtain damages. is an area where flexibility is likely mote certainty for patentees, this must do to meet this burden likely needed because what patentees depends on their specific situations. If a patentee owns very few pat- virtual marking website for many ents, it may not need to change its years. years, perhaps even up to twenty deceptive intent.”); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, deceptive intent.”); Octane Fitness, LLC v. in the rare case in which a party’s unrea- 555 (2014) (“[A] district court may award fees sonable conduct—while not necessarily independently sanctionable—is nonetheless so ‘exceptional’ as to justify an award of fees.”). 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 29 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 73 Side A 12/15/2020 11:16:45 12/15/2020 A 73 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 73 Side B 12/15/2020 11:16:45 M K C Y 188 , https:// [Vol. 54 (Aug. 7, 2013), ORBES , F it should give courts While these solutions are While these solutions Additionally, a close com- Additionally, a close 193 189 190 Search Trademark Database , FFICE O note 12, at 18 (“[V]irtual patent marks are scat- note 12, at 18 (“[V]irtual patent marks are supra note 5, at 396 (suggesting that “patentees should also be note 5, at 396 (suggesting that “patentees Part II.C. RADEMARK How Much Does a Website Cost? Given the close similarity between the trade- Given the close similarity between A major goal of virtual marking is to reduce A major goal of virtual marking & T CREIGHTON LAW REVIEW supra 192 194 See supra ATENT notes 105-108 and accompanying text. , Ilya Pozin, (“Any virtual marking website should include a notification system that (“Any virtual marking website should include U.S. P Nat’l Prods., Inc. v. Arkon Res., Inc., No. C15-1553RSL, 2017 WL 497678, McCaffrey, does not provide the notice required to collect post- does not provide the notice 191 See See supra See See, e.g. See id. See Further, requiring a notification system could create additional Further, requiring a notification Some scholars have suggested different solutions to this problem, suggested different solutions to Some scholars have 192. 190. It might be difficult to determine, for instance, how individual products are 189. 191. 193. 194. 188. www.uspto.gov/trademarks-application-process/search-trademark-database (last vis- www.uspto.gov/trademarks-application-process/search-trademark-database (last ited Aug. 24, 2020) (explaining how to use the USPTO’s trademark database to search for specific marks). likely need to do more to provide notice of potential changes.more to provide notice of potential likely need to do One pos- marking site. a detailed changelog of the virtual sibility is keeping https://www.forbes.com/sites/ilyapozin/2013/08/07/how-much-does-a-website-cost/#378a pause to diverge the two requirements with respect to the impact of a pause to diverge the two requirements public registry on constructive notice. could not easily be built into their costs for patentees, if such a feature existing websites. interesting and may each work for some patentees, none are perfect as each work for some patentees, interesting and may a blanket solution. questions registry could raise additional A public of virtual marking. about the mechanics parison to a potential public registry, the online database for trade- public registry, the online parison to a potential marks, tered across the Internet, hosted on assignees’ web sites that may be temporarily tered across the Internet, hosted on assignees’ unavailable.such elements in court to argue against proper Defendants could use marking. computing (i.e., blockchain technology) could Recent advances in distributed be exploited to address these deficiencies. In particular, a distributed ledger, which contains information that is available to all—and verifiable by all—at any time, could be implemented.”). mapped to patents on a public registry site. One can imagine a system that requires the the public to search for specific products, which might be burdensome in cases when actual patentee’s name is unclear. Similarly, the routing scheme for such a wide-rang- ing system could produce fairly long URLs, which might cut against the goal of marking on small products. required to keep records of all past revisions as evidence of the contents on a particular required to keep records of all past revisions date or range of dates.”). mark and patent marking requirements, costs for patentees, so increased development costs could undercut costs for patentees, so increased alerts members of the public who subscribe to it that a particular page has been up- alerts members of the public who subscribe dated. consistency in the structure and appearance of A public registry would ensure of past revisions were available as re- product pages and also guarantee that records quired by law.”); de Rassenfosse, at *1 (W.D. Wash. Feb. 7, 2017) (noting that “the trademark notice provision is similar to that found in patent law”). registration damages despite providing nationwide constructive notice registration damages despite providing of the registration. such as providing a public registry, creating a notification system for a public registry, creating a notification such as providing blockchain to to a given marking site, or using users who subscribe ledger of changes. maintain a distributed 136 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 30 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 73 Side B 12/15/2020 11:16:45 12/15/2020 B 73 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 74 Side A 12/15/2020 11:16:45 198 137 (2020), PPLICATION A ERVICE S ATENT LERT , P A and it does not seem 200 PPLICATION , https://www.ibm.com/blockchain/ A ATENT note 197 (noting that the tool “only searches , P supra Blockchain Beyond the Hype: What Is the Strategic , The additional effort and cost to implement The additional effort New Alert Blockchain Use Cases Additionally, the average investment required Additionally, the average investment (June 2018), https://www.mckinsey.com/business-functions/ 195 . 112-98, at 52-53 (2011) (“This amendment will save costs for . 112-98, at 52-53 (2011) (“This amendment 201 O ENSURING PROPER NOTICE ENSURING IBM, INSEY ., 138 F.3d at 1443. . N K EP C , M (2020), https://www.uspatentappalerts.com/faq.php (informing users (2020), https://www.uspatentappalerts.com/faq.php Brant Carson et al., H.R. R One can use this tool to search on a particular patentee’s One can use this It is likely that if Congress desires such a notification system It is likely that if Congress desires While virtual marking is optional, the fact that it is designed is optional, the fact that it While virtual marking ERVICE See See generally See See Nike, Inc Patent Application Alerts – Frequently Asked Questions Patent Application Alerts 197 199 S Using blockchain, while perhaps the most interesting option, Using blockchain, while perhaps Notably, the USPTO currently offers an alert system for when currently offers an alert system Notably, the USPTO 196 199. 200. 201. 196. 197. 198. After creating an account, one can create a new alert, which includes a field for 195. LERT M K that potential benefit. https://go.uspatentappalerts.com/alert.php. For example, a test search conducted by the https://go.uspatentappalerts.com/alert.php. For example, a test search conducted by as- author on August 31, 2020 yielded four recently published patent applications for signee “Apple, Inc.” likely that patent marking is the use that will motivate further devel- likely that patent marking is the opment in this area. use-cases/ (last visited Aug. 27, 2020) (identifying a number of compelling uses for use-cases/ (last visited Aug. 27, 2020) (identifying a number of compelling uses the group of applications published the prior week”). such a system could further undercut another goal of patent marking further undercut another goal such a system could notice to the pub- “encouraging patentees to give more generally: lic.” mckinsey-digital/our-insights/blockchain-beyond-the-hype-what-is-the-strategic-busi- ness-value (“Despite the hype, blockchain is still an immature technology, with a mar- ket that is still nascent and a clear recipe for success that has not yet emerged. of Unstructured experimentation of blockchain solutions without strategic evaluation not the value at stake or the feasibility of capturing it means that many companies will see a return on their investments.”). producers of products that include technology on which a patent issues after the product producers of products that include technology marking on smaller products.”). is on the market, and will facilitate effective that this system provides alerts “when an application matching [the user’s] search crite- that this system provides alerts “when an ria is published”). “Assignee” (i.e., the patentee). name to receive future notifications of that patentee’s applications. notifications of that patentee’s name to receive future for patent marking purposes, however, the cost to the USPTO to ex- for patent marking purposes, however, is much lower in aggregate than pand its existing notification system each craft their own notification requiring individual patentees to systems. for patentees.could also be the most challenging Many companies are capability, still working to develop blockchain to decrease costs for patentees should discourage the imposition of ad- for patentees should discourage the to decrease costs of virtual marking. those who wish to take advantage ditional costs on that is pub- keywords appear in a patent application certain specified lished. Business Value? 51bc416d (noting that specific features, and details about those features, can signifi- 51bc416d (noting that specific features, and for a website). cantly impact development time and pricing A This feature works only for published applications; the USPTO would This feature works only for published when patents are eventually is- need to expand the system to alert sued. 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 31 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 74 Side A 12/15/2020 11:16:45 12/15/2020 A 74 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 74 Side B 12/15/2020 11:16:45 M K C Y which OLUTIONS [Vol. 54 S 202 LOCKCHAIN B WNERSHIP FOR O So long as each patentee can 205 OST OF C OTAL note 5, at 396 (“To get the maximum benefit from virtual CREIGHTON LAW REVIEW LLP, T supra OUNG ., 138 F.3d at 1447 (citing Maxwell v. J. Baker, Inc., 86 F.3d 1098, the steps that patentees take to establish notice when take to establish notice the steps that patentees & Y 204 35 U.S.C. § 287(a) (2013) (“In the event of failure so to mark, no damages McCaffrey, and they bear the burden of proof in establishing construc- burden of proof in establishing and they bear the RNST 203 See Nike, Inc See Because patentees should be allowed to modify their sites as nec- should be allowed to modify their Because patentees Overall, the dictionary definition of “posting,” the USPTO’s ap- Overall, the dictionary definition 204. 205. 202. E 203. could cut against virtual marking’s goal of reducing costs to patentees. virtual marking’s goal of reducing could cut against how- had a significant blockchain infrastructure, If a company already any changes to its leverage that to manage ever, it could potentially site. virtual marking essary, to implement blockchain for many companies is quite high, for many companies is quite to implement blockchain determine and demonstrate when the infringer would have been on determine and demonstrate when by which they make that deter- notice of the patent, the exact manner mination can vary. and the risk of inadequate notice all parent interpretation of the word, webpage.cut toward a posting being a single While a broader defini- for patentees, those benefits tion may provide some limited benefits considerations, and may indeed simply do not outweigh the other adequate notice to the public.come into conflict with providing Fur- patentees should make extra ther, due to the transience of websites, marking, patentees should be permitted to modify their sites liberally.”). 1111 (Fed. Cir. 1996)) (noting that “compliance with the marking statute is a question of 1111 (Fed. Cir. 1996)) (noting that “compliance with the marking statute is a question the fact, and the burden of proving compliance with the marking statute is upon patentee”). their sites are modified should largely be left up to them. should largely be left up to their sites are modified A patentee to implement updates its site should not be required who hardly ever but a patentee with thousands a potentially costly notification system, than include only a date at the of patents probably needs to do more bottom of the page. Some of the solutions offered by commentators complex sites or well-developed could work for certain patentees with the USPTO could consider ex- blockchain capabilities, and perhaps patent applications to cover issued panding its notification system for patents, if patentees so desire. In any case, the marking statute pro- when the infringer was on con- vides that damages begin accruing structive notice of the patent. shall be recovered by the patentee in any action for infringement, except on proof that in the infringer was notified of the infringement and continued to infringe thereafter, which event damages may be recovered only for infringement occurring after such notice.”). tive notice, blockchain technology, including healthcare, customs declarations, and regulatory blockchain technology, including healthcare, compliance). 13 (Apr. 2019), https://www.ey.com/Publication/vwLUAssets/ey-total-cost-of-ownership- for-blockchain-solutions/$File/ey-total-cost-of-ownership-for-blockchain-solutions.pdf (estimating that for the average client situation, the cost to implement blockchain over five years exceeds $300,000). 138 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 32 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 74 Side B 12/15/2020 11:16:45 12/15/2020 B 74 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 75 Side A 12/15/2020 11:16:45 139 One 206 , https://www.lexico.com/en/definition/ EXICO In holding that the patentee did not , L 210 ” Associate , By contrast, it added, “[m]ere direction to a , 397 F. Supp. at 577. RESS 209 ENSURING PROPER NOTICE ENSURING . P SSOCIATES NIV “A Manufacturing Resources International v. Civiq Smart- Manufacturing Resources International U Mfg. Res. Int’l, Inc. v. Civiq Smartscapes, LLC, 397 F. Supp. 3d 560, 577 (D. the court noted that the association requirement is de- In XFORD 208 See Civiq Smartscapes Id. 207 , EFINING While it does not appear that the USPTO has made an interpreta- While it does not appear that the USPTO The primary challenge raised by the term “associates” is that it is The primary challenge raised by the 207. 210. 208. 397 F. Supp. 3d 560 (D. Del. 2019). 209. 206. O M K effort to ensure they are providing adequate notice and maintaining are providing adequate notice effort to ensure they will depend on they make to their sites, which records of what changes their specific facts. to a result, “posting” should be interpreted As wherein modifica- that is not the homepage mean a single webpage tracked by the patentee.tions are appropriately the Congress, a standard us- should also consider establishing USPTO, or the courts is needed for to determine what level of uptime ing the “nines” metric to be achieved.adequate notice standards, In the absence of these marking sites rea- look to ensure that their virtual patentees should are covered potential infringers that their products sonably convey to a single page with some system by specific patents, ideally by using marking site. for tracking changes to the virtual B. D reading of this definition suggests a requirement to create a clear link reading of this definition suggests between products and patents. However, an argument could be made broadly, that simply providing that if the word “connect” is interpreted else, is sufficient notice.a list of patent numbers, and nothing After already knows that the paten- all, the person searching for the patent the inclusion of patent numbers tee makes a certain product; thus, the product to the patent in some alone might be enough to “connect” not sell many products. cases, especially if the patentee does has addressed the issue in some tion of this term, one district court detail. associate (last visited Aug. 24, 2020). provide adequate notice to potential infringers, the court highlighted unclear what exactly is required to “associate” a specific product with unclear what exactly is required to website.a patent number on a virtual marking The relevant diction- (something) with something ary definition of “associate” is to “connect or one produces another.” else because they occur together general website listing patents for all the patentee’s products does not create this same association.” Del. 2019). signed to “provide[commensurate with that of ] a level of notice physical marking.” scapes 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 33 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 75 Side A 12/15/2020 11:16:45 12/15/2020 A 75 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 75 Side B 12/15/2020 11:16:45 M K C Y va- 214 [Vol. 54 patent.’”). 211 the In other words, 213 This and other similar This and other it does not seem that we 212 Given that the relevant in- 216 215 , it seems clear that simply listing , 397 F. Supp. 3d at 577. CREIGHTON LAW REVIEW , 136 S. Ct. 1923 (2016) (“[T]he plain language of the marking Civiq Smartscapes Part IV. Hancock v. Gumm, 107 S.E. 872, 877 (Ga. 1921) (“[W]here a recorded deed (“[I]t is clear from the plain language of the statute itself and related stat- (“[I]t is clear from the plain language of the Stryker Corp. v. Zimmer, Inc., 782 F.3d 649, 660 n.5 (Fed. Cir. 2015), Civiq Smartscapes See supra See Id. See From the dictionary definition, we know that to associate a pat- From the dictionary definition, we Considered broadly, lessons from other areas of the law teach that Considered broadly, lessons from other This is analogous to the real property context in particular. to the real property context in This is analogous In 215. 216. 212. 213. Glorieux v. Lighthipe, 96 A. 94, 96 (N.J. 1915). 214. 211. that a list of patents, without a more explicit connection to specific without a more explicit connection that a list of patents, public.” creates a research project for the products, “merely such a scheme would “create[such a scheme would public.” ] a research project for the holdings seem underpinned by the fact that while doing so is possible, by the fact that while holdings seem underpinned every person in the to check every conveyance by forcing purchasers “impose an intolerable burden.” chain of title would could reasonably expect someone to take that notice if given only a list could reasonably expect someone to products. of patents without reference to specific it must connect the two items. ented product with a patent number, of the law, as well as the District Given the lessons from other areas Court holding in quiry is whether a potential infringer is on notice that a specific quiry is whether a potential infringer product is covered by a specific patent, patent numbers with no further information does not sufficiently con- patent numbers with no further information nect a product with the patent number. As a result, the interpretation a higher standard. The author of the word “associates” should reflect to mean to specifically con- proposes that “associates” be interpreted number of the patents used in the nect the patented product with the product. statute provides that the patented article be marked with the ‘number of utes that the website itself must do more than simply list the patentee’s patents. Sim- the ply listing all patents that could possibly apply to a product or all patents owned by patentee on the patentee’s marking website does not give the public notice. It merely creates a research project for the public.”). to a lot forming part of a larger tract contains restrictive covenants, which by the terms of of the deed are not only to apply to the lot conveyed, but, as in this case, to other lands the grantor, a purchaser of one of the lots is not charged with notice of the covenant contained in a prior deed from the common grantor to another lot or parcel of the gen- eral tract.”). notice is adequate when the relevant public could be reasonably ex- notice is adequate when the relevant pected to take notice of a given fact. one case, a court held that a purchaser was not on notice of a covenant held that a purchaser was not on one case, a court conveyance from land but was included only in the that applied to his to another purchaser. the same grantor cated on other grounds 140 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 34 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 75 Side B 12/15/2020 11:16:45 12/15/2020 B 75 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 76 Side A 12/15/2020 11:16:45 219 223 141 An . U. L. How- 222 ASH 221 of the patent An example , 91 W 217 If we ask paten- 224 quid pro quo . 175, 175 (2016) (“It is uncontrover- between the inventor and the EV L. R OCK R 35 U.S.C. §§ 101-103 (2012) (providing requirements quid pro quo EQUIREMENT ITTLE note 5, at 394-95 (“Allowing patentees to list thousands note 5, at 394-95 (“Allowing patentees to R . L It is possible, perhaps even likely, that a po- It is possible, perhaps even likely, Damages for Indirect Patent Infringement RK see also note 5, at 395 (suggesting that Congress could “provide a ITLE supra 220 Patent Eligibility and Physicality in the Early History of Patent , https://www.lg.com/us/patent (last visited Aug. 24, 2020). , https://www.lg.com/us/patent (last visited ENSURING PROPER NOTICE ENSURING T supra Part III.B. , 38 U. A Patent for some inventions; the public already has the invention, for some inventions; the public already Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437, 1443 (Fed. Cir. 1998). One scholar has posited that this is not adequate notice, posited that this is not adequate One scholar has LG, See supra See See Id. 218 NSERTION OF To address this problem, one potential solution is to limit the To address this problem, one potential These interpretations still leave one key problem unaddressed: still leave one key problem These interpretations . 911, 929 n.91 (2014); 224. Dmitry Karshtedt, 220. 222. 219. See McCaffrey, 218. 221. McCaffrey, 223. Ben McEniery, 217. EV M K C. I arbitrary limit on the number of patents would not be fair to paten- arbitrary limit on the number of tees. Patents represent a R ever, “any limit that Congress impose[s] would be arbitrary.” ever, “any limit that Congress impose[s] system; it is the benefit the public receives in exchange for the State bestowing monop- oly rights on a private individual.”). of this issue, as illustrated previously, is LG’s virtual marking site, illustrated previously, is LG’s virtual of this issue, as the “Optim G patents for one individual product, which lists 626 E970.” tees to limit their marking sites to list only a certain number of pat- tees to limit their marking sites to to surrender their benefit in the ents, we are effectively asking them sial that the patent system exists to provide an incentive to encourage the invention and sial that the patent system exists to provide an incentive to encourage the invention commercialization of new products and processes and the disclosure by the patent appli- cant of information sufficient to enable a person skilled in the relevant field of technol- ogy to reproduce the claimed invention. This disclosure is the public; the inventor discloses how to make and use the invention to public; the inventor discloses how monopoly on the invention. the public in exchange for a temporary for utility, novelty, and non-obviousness). of patent numbers with no guidance for the public does not provide adequate notice.”). of patent numbers with no guidance for the tential infringer, even when conducting a good faith effort to avoid tential infringer, even when conducting claim that potentially reads on its infringement, might overlook a number of patents to examine. product when given such a large list for a given product. number of patents a patentee can limit to the number of valid patents that can be listed for a single product” or “enforce a limit to the number of valid patents that can be listed for a single product” or “enforce reasonable limit by preventing patentees from adding more than a predetermined num- ber of marks to a product page”). the possibility that even if the requirements are otherwise met, paten- even if the requirements are otherwise the possibility that becomes untenable so many patent numbers that it tees may provide patents covering a specific product. to understand all Law and Practice quid pro quo Because patents must be useful, novel, and nonobvious, each patent Because patents must be useful, . . .presumably “represents a unique invention.” 2020] be a reasonable conclusion.and this seems to it is At a minimum, to avoid inno- the patent marking goal of “helping inconsistent with cent infringement.” \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 35 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 76 Side A 12/15/2020 11:16:45 12/15/2020 A 76 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 76 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 ROCEDURE P 227 XAMINING E While this site does 230 ATENT P note 120, at 1. In addition, copyright law re- In addition, copyright supra , ANUAL OF the benefit of the title’s presence 225 , M note 22, at 3 (noting that beginning in 1927, FFICE 231 O FFICE supra O note 37 (including not only patent numbers but also note 5, at 395. OPYRIGHT C supra RADEMARK CREIGHTON LAW REVIEW , supra With this in mind, the title may be an appropriate With this in mind, the title may be the patent number. fact, for eighty-five years, In TATES & T ILLS S 229 With that in mind, it is fair to believe that more infor- With that in mind, it is fair to believe only M at § 606.01 (“Where the title is not descriptive of the invention claimed, (containing broad categories such as “Baking” and “Meals” instead of ATENT 226 NITED U Goryunov & Polyakov, McCaffrey, ENERAL Further, if a patent applicant does not provide a descriptive Further, if a patent applicant does See id. See id. See See See 228 Alternatively, there is no requirement that patent marking lan- is no requirement that patent Alternatively, there At least one patentee has already begun including this informa- At least one patentee has already There is one component of a patent that is fairly succinct and can There is one component of a patent 227. 226. 231. 228. U.S. P 230. G 225. 229. but now the patentee is limited in its ability to enforce its monopoly on is limited in its ability to enforce but now the patentee it is unable to list.the patents that avoid espe- While it would help cap on the of patents, simply placing an arbitrary cially large lists solution to this a patentee can list is not the best number of patents problem. guage contain not organize by specific product, quires that works be marked with three elements for proper notice: be marked with three elements quires that works owner’s name, and the year of first the copyright symbol, the copyright publication. can clearly be seen. Assume for example, that a competitor wants to create a new line of frozen pizzas. By looking through the list of pat- competitor can quickly distinguish ents on General Mills’ site, this “Pizza Product,” “Cheese Composi- patents that may be relevant (e.g., patentees were required to include the patent number rather than the date, which was patentees were required to include the patent number rather than the date, which originally required in 1842). patent titles). component to add to the virtual marking requirements. component to add to the virtual marking Mills. tion on its virtual marking site: General patentees were required to mark the dates of their patents on prod- to mark the dates of their patentees were required patent number. ucts instead of the mation about the patent can be included, particularly on a virtual mation about the patent can be “theoretically limitless.” marking website, where space is the examiner should require the substitution of a new title that is clearly indicative of the examiner should require the substitution of a new title that is clearly indicative the invention to which the claims are directed. . . . This may result in slightly longer titles, but the loss in brevity of title will be more than offset by the gain in its informa- by tive value in indexing, classifying, searching, etc. If a satisfactory title is not supplied the applicant, the examiner may, at the time of allowance, change the title by an exam- iner’s amendment.”). specific product offerings). title, the examiner may suggest a new title to the applicant or simply title, the examiner may suggest a amend the title. convey significant meaning about the focus of the patent: the title.convey significant meaning about Ac- the invention should be less than cording to the USPTO, the title of and descriptive” of the inven- 500 characters “but technically accurate tion. § 601 (Nov. 2015), https://www.uspto.gov/web/offices/pac/mpep/mpep-0600.pdf. 142 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 36 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 76 Side B 12/15/2020 11:16:45 12/15/2020 B 76 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 77 Side A 12/15/2020 11:16:45 , , 5 143 FFICE O , https://pat- (Nov. 4, 2019), RADEMARK Patents & T or links to the patent Google Patents , LBP, 235 ATENT See , https://worldwide.espacenet.com/ OOGLE , G Espacenet , See, e.g. See id. FFICE O While these additions, and perhaps even While these additions, and perhaps note 5, at 395. 236 43, 56 (2009) (discussing the concept of information over- ATENT Y ’ —it more reasonable to hold some- seems much P , http://patft.uspto.gov/netahtml/PTO/index.html (last visited Complexity, Information Overload, and Online Deliberation OC supra ENSURING PROPER NOTICE ENSURING 233 . S NFO Simply requiring a title strikes a good balance here, as Simply requiring a title strikes a UROPEAN I For patentees with large numbers of patents, adding the large numbers of patents, adding For patentees with and could risk creating information overload or fatigue to and could risk creating information Y (listing patent titles such as “Food Product” and “Label”). (listing patent titles such as “Food Product” ’ While this is not an airtight solution—some While this is not patents are 238 Oren Perez, OL 237 McCaffrey, 234 232 See See id. See id. See Including the titles of patents is not a heavy burden for patentees; of patents is not a heavy burden Including the titles If patentees wish to further enhance the notice provided by their If patentees wish to further enhance 237. Depending on the products, it may not be easy or desirable for some patentees 238. 235. a manufacturer of various food and beverage containers, has included LBP, 234. 232. 233. 236. While the author was not able to locate a specific virtual marking webpage that M K I/S: J.L. & P tions and Related Methods”) from those that may not be relevant (e.g., Methods”) from those that may not tions and Related Bottom Taco Method and Device,” “Square “Dumpling Producing Shell”). ents.google.com/ (last visited Aug. 24, 2020); U.S. P https://www.lbpmfg.com/patents/ [https://web.archive.org/web/20191104175922/https:// www.lbpmfg.com/patents/]. could be particularly useful for patentees This addition names, such as the coffee containers and whose products do not have immediately clear beverage sleeves patented by LBP. documents themselves. (last visited Aug. 24, 2020). Patentees could either link to the entries stored on one of these sites or maintain the patent documents on their own servers and link to those documents. Either way, this would eliminate the additional step for the public of look- ing up the patent once obtaining the patent number from the virtual marking website. to provide images of each product on their virtual marking sites. Similarly, storage considerations may make it difficult for certain patentees to store and link to patent of documents for all patents they own, especially if they own hundreds or thousands patents. Locating and storing all patent documents could be a much more costly task than including only the title along with the patent number. others not listed here, could help the public avoid innocently infring- others not listed here, could help could also result in higher costs for ing, each additional requirement patentees images of its products on its virtual marking site. images of its products on its virtual marking one on notice that a product is covered by a patent when the title is a product is covered by a patent one on notice that the patent number. provided along with sites is essentially available on virtual marking after all, the space limitless. Sept. 5, 2020); E title will significantly aid the public in avoiding innocent infringe- aid the public in avoiding title will significantly ment. additional effort on the While it may require some marginal this seems a small price to part of the patentee’s website developer, by the presence of patent titles. pay for the additional notice afforded include even more information virtual marking websites, they could number.beyond just the title and the product For example, patentees products could also include images of specific the public. still titled vaguely does this in practice, the mechanics would be relatively simple. Many public registries exist for obtaining patent documents. USPTO Patent Database 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 37 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 77 Side A 12/15/2020 11:16:45 12/15/2020 A 77 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 77 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 of the pat- and title Patent Eligibility Reform in Congress: Updates on the Til- (Aug. 21, 2019), https://www.mondaq.com/unitedstates/In CREIGHTON LAW REVIEW ONDAQ , M the author proposes including the new statutory language in 239 As a result of this analysis, the author recommends requiring that analysis, the author recommends As a result of this Virtual marking was implemented to reduce costs for patentees Virtual marking was implemented the author recommends that To implement these interpretations, 239. Christopher P. King, it is short and should be relatively simple to add to the page as it con- be relatively simple to add to it is short and should text. sists of only additional the patent num- the title of the patent along with all patentees include marking websites.ber on their virtual amend- This would be a simple title” into the could simply insert the words “and ment; Congress where appropriate.marking statute § In context, 35 U.S.C. 287(a) Internet . . . that in relevant part, “a posting on the would then read, article with the number associates the patented ent.”such an amendment, however, patentees Even in the absence of additional information on their vir- are not prohibited from including the notice effected by their sites tual marking sites, and could enhance even other additional information by including the title and perhaps about the patents. VI. CONCLUSION small products, but it has not been and facilitate easier marking on widely adopted. It is quite likely that greater certainty surrounding could lead to increased adoption. the requirements for virtual marking for purposes of the virtual mark- As a result, this article proposes that as a single webpage that is not ing statute, “posting” be interpreted for managing changes, and “asso- the homepage and has some system connecting the patented ciates” be interpreted to mean specifically used in the product.product with the number of the patents Further, insert the words “and title” into the the article proposes that Congress required to include the title of the statute, such that patentees are on virtual marking webpages. patent along with the patent number of “posting” and “associates” courts begin applying the interpretations as marking issues come up, and the author also urges the United States Patent and Trademark Office (“USPTO”) to promulgate these interpretations as appropriate in its guidance. Further, Congress ap- fu- pears poised to provide new rules for patent eligibility in the near ture; tellectual-Property/838446/Patent-Eligibility-Reform-In-Congress-Updates-On-The-Til lis-Coons-Proposal. this bill, should it be further considered. lis-Coons Proposal load and noting that “[t]here are numerous studies that demonstrate that the capacity of the human mind to deal with extensive amounts of information-in terms of attention resources, memory, and processing (computation)-is highly limited”). 144 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 38 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 77 Side B 12/15/2020 11:16:45 12/15/2020 B 77 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 78 Side A 12/15/2020 11:16:45 145 Patentees 240 ENSURING PROPER NOTICE ENSURING Of course, there is nothing stopping a patentee from abiding by is nothing stopping a patentee from Of course, there 240. Rutherford v. Trim-Tex, Inc., 803 F. Supp. 158, 161 (N.D. Ill. 1992). M K these recommendations immediately.these recommendations in this ar- Given the discussion find a single unlikely that any court would ticle, it seems highly products, and patent numbers with specific webpage that associates the marking stat- providing inadequate notice under includes titles, as on the notice ef- given courts’ “long-standing focus ute, particularly rather than on of marking the patented article fected by the method compliance with the statute.” the precise mechanistic who are looking to employ virtual marking, but have concerns about to employ virtual marking, but have who are looking strategy as should feel comfortable that a marking the requirements, to provide adequate notice. described herein should be sufficient 2020] \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 39 9-DEC-20 15:44 C Y 42655-cre_54-1 Sheet No. 78 Side A 12/15/2020 11:16:45 12/15/2020 A 78 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 78 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 CREIGHTON LAW REVIEW 146 \\jciprod01\productn\C\CRE\54-1\CRE105.txt unknown Seq: 40 9-DEC-20 15:44 42655-cre_54-1 Sheet No. 78 Side B 12/15/2020 11:16:45 12/15/2020 B 78 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 79 Side A 12/15/2020 11:16:45 R R R R R R R 147 , Pomona ND ...... 160 S ’ UCCUMBING summa cum laude . . . A S ...... 152 1 editors for their diligence and ...... 148 † ONTEXT ANDSCAPE ROTHER U 1984 ...... 160 ODELS L B X M IG EGAL : B AIN IAOYI OLUNTARILY L X V M ARGE COVID-19 C PRIL L ...... 160 HOSE HREE A ...... 157 Creighton Law Review T T - George Orwell, ATCH , 1984, at 3 (1949)...... 152 “Big Brother Is Watching You.” “Big Brother Is Watching W ICTURE AT VERVIEW OF THE IS TO RWELL P Governance O H O ELPERS AND N ELEVANT TO THE EYOND HE NTRODUCING R 1. European Approach to Digital Privacy The B H THE TIME OF CORONAVIRUS* THE TIME BUT WHAT IF BIG BROTHER’S BUT WHAT EORGE SURVEILLANCE SAVES LIVES?—SURVEILLANCE A. A A. I B. T DIGITAL PRIVACY RIGHTS AS A NECESSARY DIGITAL PRIVACY RIGHTS AS NEW NORMAL EVIL TO END THE DYSTOPIAN UNDER THE COVID-19 REGIME COMBAT COVID-19: A TYPOLOGY THE TIME OF CORONAVIRUS COMPARATIVE DIGITAL PRIVACY IN DIGITAL PRIVACY COMPARATIVE I. INTRODUCTION AND CONTEXT: CURTAILING * This Essay was written in mid-April 2020. Due to the rapidly-evolving † J.D. Law School (2021); B.A., Candidate, Harvard 1. G II. USES DIGITAL DATA TO HOW BIG BROTHER III. IN ON DIGITAL PRIVACY LAW IN ZOOMING M K College (2018). I would like to thank my family, friends, and professors for their support and during this trying period in life. Special thanks go to my parents Amy and Frank, be- my grandparents, for always being there for me despite the geographical distance this tween us, Professor Urs Gasser for all his guidance and expertise that inspired en- Essay in invaluable ways, Professor Jeannie Suk Gersen for her mentorship and couragement, Zahra Takhshid for suggestions for this Essay, Andrew B. Liu (Ph.D. can- didate at Harvard Medical School) for his insights on bioinformatics and epidemiology, and Kent A. Shikama for kindling my interest in exploring intersections between law pri- technology, and my classmates for enlightening discussions on comparative digital vacy. I also wish to thank the professionalism throughout the editing process. situation surrounding the novel coronavirus, new data and studies, digital privacy of policies, and laws in each jurisdiction may have emerged or altered post-completion this Essay. \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 1 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 79 Side A 12/15/2020 11:16:45 12/15/2020 A 79 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 79 Side B 12/15/2020 11:16:45 R R R R R M K C Y (Mar. , https:// [Vol. 54 EEK W D EALTH , E Streets were (Mar. 6, 2020), H 5 OF EEK . T W ’ (Apr. 1, 2020), https:// D EP ONCERNS , E . D T C NSIDER , V . I US EGAL ‘Sudden Black Hole’ for the Economy URVEILLANCE L , B S (Apr. 9, 2020), https://www.nytimes.com/ ...... 162 ...... 164 IMES ELATED IGITAL 13 photos of New York City looking deserted as the -R D S ’ , N.Y. T ...... 166 ...... 164 RIVACY , https://www.bonappetit.com/story/food-businesses-covid-19 P ROTHER CREIGHTON LAW REVIEW The Scramble to Move America’s Schools Online B Travel was effectively out of question, as were wed- Travel was effectively out of question, ...... 170 6 TO IG PPETIT Map: Coronavirus and School Closures Privacy Governance Anonymized Data and Contact Quarantine Enforcement Tracing COVID-19 Social Distancing Poster From Pandemic to Protests: How Food Businesses Nationwide Are Re- Everyone worried every day about the safety and Everyone worried every day about , B , , Patricia Cohen & Tiffany Hsu, , , Jessica Snouwaert, A 3 PPLYING TRATEGIES 2.Approach to Digital The United States S 1. Aggregated, Flow Modeling Using 2. Methods: The Cellphone Tracking Most working-age adults found themselves at home, many Most working-age adults found themselves ON 2 Bustling restaurants and bars were ordered to shut down, Bustling restaurants and bars , B B. A AND BEYOND: SYNTHESIS AND LOOKING AND BEYOND: SYNTHESIS AND AHEAD See, e.g. See, e.g. See, e.g. See, e.g. See, e.g. 4 By April 2020, a significant portion of students from across the By April 2020, a significant portion 5. 3. 4. 6. 2. PRIVACY RIGHTS AS A NECESSARY EVIL TO END THE PRIVACY RIGHTS AS A NECESSARY THE COVID-19 REGIME DYSTOPIAN NEW NORMAL UNDER IV. THE NOVEL CORONAVIRUS, COUNTERING www.healthvermont.gov/sites/default/files/documents/pdf/COVID-social-distancing- poster-ltr.pdf (last visited Aug. 30, 2020). 27, 2020), https://www.edweek.org/ew/articles/2020/03/26/the-scramble-to-move-ameri cas-schools-online.html. https://www.edweek.org/ew/section/multimedia/map-coronavirus-and-school-closures. html; Benjamin Herold, virtually empty. www.businessinsider.com/coronavirus-pictures-of-new-york-city-empty-streets-2020-3. 2020/04/09/business/economy/unemployment-claim-numbers-coronavirus.html. (last visited Aug. 30, 2020). health—the fundamental needs—of most loved ones. Across public reminded individuals to stay six spaces, “no entry” signs and posters enforce social distancing at all feet away from each other to strictly times. unemployed. save for a few diligent takeout and delivery locations. save for a few diligent takeout and With Millions More Unemployed city tries to limit the spread of the coronavirus sponding I. INTRODUCTION AND CONTEXT: CURTAILING DIGITAL of learning with their friends globe were taking classes online instead at school. 148 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 2 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 79 Side B 12/15/2020 11:16:45 12/15/2020 B 79 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 80 Side A 12/15/2020 11:16:45 ., ., 11- RG RG 149 Al- (Apr. LOOM- O O 8 B 10 What is APERS P EALTH EALTH EALTH H H OPKINS . H (Mar. 17, 2020), HITE H UB . W ORLD ORLD P OF NIV , W OHNS . SSEMBLY , J . U CH A S 488, 489-96 (2020) (contain- ARV advice, W H HAN RIVACY EALTH . P . H LOB THICS AT . T. H. C LOB especially in liberal democracies especially in liberal Statement by the GPA Executive Commit- E 9 , G G ARV FOR . Feasibility of Controlling COVID-19 Outbreaks In the absence of an effective vaccine , H TR ANCET 11 Gypsyamber D’Souza & David Dowdy, C Securing Justice, Health, and Democracy Against the Securing Justice, Health, and Democracy , 8 L AFRA Accord Restricting Civil Liberties Amid the COVID-19 Pandemic, Restricting Civil Liberties Amid the COVID-19 (Apr. 10, 2020), https://www.jhsph.edu/covid-19/articles/ J. S EALTH BIG BROTHER’S SURVEILLANCE BIG BROTHER’S DMOND Joel Hellewell et al., Id. . H (Mar. 21, 2020), https://today.law.harvard.edu/restricting-civil-liber , E UB , GPA Executive Committee, 7 P ODAY see also Danielle Allen et al., OF T BERG . Coronavirus news – April 2020 See generally Coronavirus disease (COVID-19) pandemic See generally Coronavirus disease (COVID-19) See See, e.g. See, e.g., Coronavirus disease (COVID-19) travel See, e.g., Coronavirus disease (COVID-19) AW CH . L Disease models from epidemiologists including Marc Lipsitch, Disease models from epidemiologists As dystopian as these portraits of society may sound, they were, these portraits of society may sound, As dystopian as S 8. 9. 7. 10. 11. ARV M K https://www.who.int/emergencies/diseases/novel-coronavirus-2019/travel-advice (last https://www.who.int/emergencies/diseases/novel-coronavirus-2019/travel-advice visited Aug. 14, 2020). (last visited Aug. 14, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 2020). dings, honeymoons, Easter get-togethers, and graduation Easter get-togethers, dings, honeymoons, ceremonies. though these curtailments to one’s civil liberties appeared extreme to one’s civil liberties though these curtailments were drastic, and the social changes 20 (2020) (discussing how measures to suppress the spread of COVID-19 can impact 20 (2020) (discussing how measures to suppress civil liberties); Brett Milano, 11, 2020), https://www.hsph.harvard.edu/news/hsph-in-the-news/coronavirus-news- april-2020/; https://globalprivacyassembly.org/gpaexco-covid19/ (indicating that members of the Ex- https://globalprivacyassembly.org/gpaexco-covid19/ (indicating that members of the ecutive Committee of the Global Privacy Assembly (“GPA”) support the sharing of per- of sonal data by organizations and governments for the purposes of fighting the spread the COVID-19 pandemic). The GPA brings together data protection regulations from over 80 countries. ing a mathematical study using a stochastic transmission model that is parameterized to the COVID-19 outbreak). such as the United States, new policies and laws imposed by govern- States, new policies and laws such as the United the necessary evil in response to COVID-19 became ments worldwide to rid the world of of the pandemic and to mitigate the consequences as promptly as possible. this highly contagious and fatal virus achieving-herd-immunity-with-covid19.html (stating that herd immunity requires “at achieving-herd-immunity-with-covid19.html (stating that herd immunity requires im- least 70% of the population” to either get infected or get a protective vaccine to be mune and have herd protection; clearly, the former approach is unrealistic, as getting ties-amid-the-covid-19-pandemic/?utm_source=hltnewsletter&utm_campaign=Mar2520 restrictions to civil liberties). 20 (providing examples of government-mandated professor of epidemiology and director of the Center for Communicable professor of epidemiology and director School, demonstrate that inter- Disease Dynamics at Harvard Medical may be the best option to control mittent periods of social distancing off-again approach” would the COVID-19 pandemic, for this “on-again, with sick patients, buy “protect hospitals from being overwhelmed supplies, and allow the popula- them time to gather adequate medical tion to slowly gain immunity.” in one way or the other, the new normal as the world confronted a new other, the new normal as the world in one way or the “COVID-19.” in 2020: the novel coronavirus, common enemy Herd Immunity and How Can We Achieve It With COVID-19? tee on the Coronavirus (COVID-19) Pandemic COVID-19 Threat by Isolation of Cases and Contacts H 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 3 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 80 Side A 12/15/2020 11:16:45 12/15/2020 A 80 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 80 Side B 12/15/2020 11:16:45 M K , C Y 16 631, ERSONAL [Vol. 54 P ISEASES D AINTAINING NFECTIOUS : M ]healthcare system : I OGUE The less contact there is R ANCET 13 1, 5 (2020). L ONE HE Scientific and Ethical Basis for Social- exceed [ G TRESS PPS S , 20 T 4 (2020) (“[The] ultimate effect of R0 with a 4 (2020) (“[The] ultimate effect of R0 with ., A ELL (Mar. 23, 2020), https://amp.kentucky.com/news/ , C ACLU Letter to DOJ and BOP on Coronavirus and , note 13, at 631 (“In the absence of any pharmaceuti- EADER HITEPAPERS L Coronavirus Infections: Epidemiological, Clinical and Im- Coronavirus Infections: Epidemiological, Clinical , ACLU (Mar. 18, 2020), https://www.aclu.org/letter/aclu- ASKAR ET AL supra R See, e.g. CREIGHTON LAW REVIEW ERALD , MIT W H AMESH Coronavirus: Iran temporarily frees 54,000 prisoners to combat spread , R PIDEMIC 12 Thirdly and equally importantly, leaders around the Thirdly and equally importantly, E Lewnard & Lo, EXINGTON 15 Joseph A. Lewnard & Nathan C. Lo, There has also been a movement to include incarcerated populations Secondly, for those who have tested positive for coronavirus, Secondly, for those who have tested , L Id. See See, e.g. See Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but pro- 14 On a macro level, to slow and contain the spread of COVID-19, to slow and contain the spread On a macro level, 14. 13. 15. 16. 12. Didier Raoult et al., RIVACY IN AN BBC (Mar. 3, 2020), https://www.bbc.com/news/world-middle-east-51723398; John Cheves, 632 (2020) (noting evidence supporting the implementation of social distancing 632 (2020) (noting evidence supporting measures). capabilities.” and antiviral drugs, governments need to modulate the trajectory of governments need to modulate and antiviral drugs, is minimized and that the impact on global health the epidemic “so wave does not each epidemic among the population, the easier and faster it is for the virus to die among the population, the easier down. 10% use and appropriate response to data will hopefully disrupt ongoing chains of 10% use and appropriate response to data rate and eventually impacting the contact transmission, thus effecting the mortality to rate and infection curve. However, high enough utilization could reduce contact rate of such a degree as to make the overall R0 < 1[,] which would ideally lead to dying off the infection entirely.”). coronavirus/article241428266.html?__twitter_impression=true. cal intervention, the only strategy against COVID-19 is to reduce mixing of susceptible and infectious people through early ascertainment of cases or reduction of contact.”). letter-doj-and-bop-coronavirus-and-criminal-justice-system (on file with American Civil Liberties Union); world need to prioritize protecting the most vulnerable members of world need to prioritize protecting the poor, and those with serious ex- society: the elderly, the homeless, with one or multiple epicen- isting medical conditions; in countries also merit particular attention. ter(s) of coronavirus, those locations among the most vulnerable, because prisons and jails tend to have great difficulty en- among the most vulnerable, because prisons and jails tend to have great difficulty forcing social distancing. governments need to speedily identify individuals who could have got- governments need to speedily identify coronavirus carriers due to recent ten COVID-19 from the diagnosed quarantining those individuals ac- close contact, and begin testing and cordingly. governments should have at least three policy and legal objectives in have at least three policy and governments should experts with behaviors while supporting scientific regulating social to the extent possible.relevant research need to Firstly, authorities at home and people as possible stay self-isolated ensure that as many to exit their homes if they absolutely need practice social distancing needs. for essential goods or other urgent Distancing Interventions Against COVID-19 the Criminal Justice System munological Features and Hypotheses gress slow 70% of the population infected would overwhelm hospitals and medical staff, and subse- 70% of the population infected would overwhelm of deaths). quently result in a dauntingly high number P 150 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 4 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 80 Side B 12/15/2020 11:16:45 12/15/2020 B 80 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 81 Side A 12/15/2020 11:16:45 20 151 (Mar. 3, 380, 380 EWS N KY ISEASES , S D (Mar. 9, 2020), https:/ Instead of relying 17 EUTERS NFECTIOUS , R Based on various nations’ 18 , 214 J. I See id. How to Restore Data Privacy After the Coronavirus Coronavirus Pandemic Changes How Your Privacy is (Mar. 13, 2020), https://www.weforum.org/agenda/2020 Infectious Disease Surveillance in the Big Data Era: To- Infectious Disease Surveillance in the Big ORUM Even mask-wearers can be ID’d . F BIG BROTHER’S SURVEILLANCE BIG BROTHER’S Alfred Ng, CON E (2020), https://www.cnet.com/news/coronavirus-pandemic-changes- , Samantha Stein, ET ORLD see also Third, open-source applications such as Nextstrain are us- Third, open-source applications such ; First, mobile location data can provide governments with ad- First, mobile location data can provide , W 21 , CN See, e.g. Coronavirus: Surge in apps tracking spread and symptoms Id. 19 Among the sacrifices individuals have had to make in order for individuals have had to make Among the sacrifices As of early-April 2020, there have been three main ways of collect- As of early-April 2020, there have 21. Martin Pollard, 20. 19. 17. Lone Simonsen et al., 18. M K governments to accomplish these goals, a central tradeoff that citizens these goals, a central tradeoff governments to accomplish individuals’ have experienced is one between in various jurisdictions public safety.digital privacy and may read- At least theoretically, one advances to taking advantage of technological ily see ways in which Orwellian compliance with the newly-launched monitor individuals’ and efficient. can make the process more seamless laws and policies useful in big data has proven to be “immensely Significantly, while public health space and earth sciences,” the fields such as marketing fruits of a big data revolution. has yet to see the 2020), https://news.sky.com/story/coronavirus-surge-in-apps-tracking-spread-and- symptoms-11948411. (2016). of the history of infectious disease surveillance, This paper includes an overview the context of the big data revolution, a case a discussion of electronic health records in of Google Flu Trends and other social me- study on influenza surveillance, an analysis dia, and a conclusion advocating for increased use of hybrid systems combining informa- the tion from traditional surveillance and big data sources, which the authors deem most promising option moving forward. /www.reuters.com/article/us-health-coronavirus-facial-recognition/even-mask-wearers- can-be-idd-china-facial-recognition-firm-says-idUSKBN20W0WL. on recent technological advances, public health—aton recent technological advances, least up until the pandemic—hadoutbreak of the COVID-19 global been relying princi- pally on traditional surveillance systems. digital technologies and data sharing strategies to resolve the COVID- digital technologies and data sharing that COVID-19 is driving major 19 crisis so far, one may find it likely is integral to a healthy society social change in an area that worldwide. to accomplish the aforementioned ing and using digital data in order goals. /03/restore-data-privacy-after-coronavirus-pandemic/. how-your-privacy-is-protected/ (“At a media briefing on March 16, the WHO’s director- general, Tedros Adhanom Ghebreyesus, said there needed to be more technological measures for tracking the coronavirus outbreak.”). ing Gisaid, a platform for sharing genomic data, to help researchers ing Gisaid, a platform for sharing vanced tracking capabilities to help authorities enforce quarantines. vanced tracking capabilities to help Pandemic wards Faster and Locally Relevant Systems Protected Second, facial recognition technology linked with biometric databases Second, facial recognition technology thermometers to help capture the is being integrated with digital symptoms, including, notably, identity of individuals with coronavirus a fever. 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 5 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 81 Side A 12/15/2020 11:16:45 12/15/2020 A 81 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 81 Side B 12/15/2020 11:16:45 M K , C Y (Mar. 22, [Vol. 54 AIL Some coun- 24 & M EYOND LOBE This Essay focuses B , G 22 ND This approach serves to Section II of this Essay Section II of this 26 23 . . . A 25 (Mar. 5, 2020), https://www.weforum.org ODELS ORUM M . F CON AIN E M Singapore contained Coronavirus. Could other countries ORLD Canada Should Ensure Cellphone Tracking to Counter the note 24. CREIGHTON LAW REVIEW HREE , W Data Sharing and Open Source Software Help Combat COVID-19 T supra Section I. Geist, Michael Geist, See See See supra The Hong Kong government, for example, used location data to The Hong Kong government, for example, (Mar. 13, 2020), https://www.wired.com/story/data-sharing-open-source-soft NTRODUCING COVID-19: A TYPOLOGY First, multiple jurisdictions have used cellphone location data of First, multiple jurisdictions have 27 As of early-April 2020, there have generally been three main ways As of early-April 2020, there have 25. Philip J. Heijmans, 26. 27. 23. I made this decision because the first way of using digital data to combat 24. 22. Klint Finley, IRED W track and study the evolution of coronavirus. track and study 2020), https://www.theglobeandmail.com/business/commentary/article-canada-should- ensure-cellphone-tracking-to-counter-the-spread-of/. tries use a combination of these approaches. For instance, Singapore, one of the most successful nations which has widely been considered uses digital data both for quaran- in managing the COVID-19 crisis, tine enforcement and contact tracing. primarily on the first of these methods. primarily on the enforce the aforementioned social distancing and quarantine poli- enforce the aforementioned social cies. surveys the main ways in which governments have applied digital ways in which governments have surveys the main with case data sharing models to combat COVID-19, technologies and involved examination of the key stakeholders studies and a closer throughout the process. on the legal Section III of this Essay zooms in digital pri- in this pandemic from a comparative questions involved vacy law angle. IV concludes this Essay on a forward-looking Section on this fast- open invitation for further research note, extending an evolving situation. II. HOW BIG BROTHER USES DIGITAL DATA TO COMBAT A. I /agenda/2020/03/singapore-response-contained-coronavirus-covid19-outbreak/. track residents’ movement during its lockdown period to ensure that track residents’ movement during ware-combat-covid-19/. COVID-19 above has the most direct implications on individuals’ digital privacy rights. Accordingly, by understanding the main models that different jurisdictions have adopted, we will be in a better position to analyze digital privacy laws and policies dur- ing the coronavirus pandemic. specific users to ensure that self-quarantine rules have been properly specific users to ensure that self-quarantine of society. respected by individual members in which governments have applied digital technologies and data in which governments have applied goals in putting an end sharing models to achieve the aforementioned enforcement, contact tracing, to the novel coronavirus: self-quarantine anonymized data. and flow modeling using aggregated, Spread of Coronavirus Does Not Become the New Normal learn from its approach? 152 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 6 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 81 Side B 12/15/2020 11:16:45 12/15/2020 B 81 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 82 Side A 12/15/2020 11:16:45 153 The next section of 35 Id. (Apr. 22, 2020), https:// 29 Latin America Hopes Big UARTERLY . Q In Poland, the government In Poland, the M 30 , A In Europe, Tech Battle Against Coronavirus (Mar. 26, 2020), https://www.reuters.com/arti- , CNBC (Mar. 18, 2020), https://www.cnbc.com/ EUTERS For instance, as of April 2020, “[t]he city of For instance, as of April 2020, “[t]he (Mar. 24, 2020), https://nypost.com/2020/03/24/polish-resi , R 34 OST Polish Residents Can Send Government Selfies to Prove Quar- To register for the app, users need to upload per- To register for the app, users need Hong Kong is putting electronic wristbands on arriving passen- Hong Kong is putting electronic wristbands note 24. BIG BROTHER’S SURVEILLANCE BIG BROTHER’S 32 note 18. , N.Y. P , Yasodara Cordova & Beatriz Botero Arcila, supra Some Latin American countries, which were hit by the Some Latin American countries, Starting on March 19, when Hong Kong ordered all arriv- 19, when Hong Kong ordered Starting on March supra The app uses geolocation and facial recognition technologies: The app uses geolocation and facial 33 28 Id. See, e.g. Id. 31 Second, various countries and regions have used cellphone loca- Second, various countries and regions In Taiwan and India, there have been similar measures where there have been similar measures In Taiwan and India, 30. Geist, 35. 34. 32. 31. Kenneth Garger, 29. Uptin Saiidi, 33. Anna Koper & Douglas Busvine, 28. Ng, M K everyone stayed in his or her quarantine locations if asked to be quar- his or her quarantine locations everyone stayed in antined. this Essay, Section III, will discuss this matter in greater depth in considering some of this Essay, Section III, will discuss this matter in greater depth in considering some the legal questions involved. We will return to this Hong Kong example as a brief case study in Section III(B)(2) of this Essay. www.americasquarterly.org/content/latin-america-hopes-big-data-can-beat-virus-there- are-risks. launched “Home quarantine,” a smartphone application for citizens quarantine,” a smartphone application launched “Home been required to self-isolate for two returning from abroad who have weeks. cle/us-health-coronavirus-europe-tech-poland/in-europe-tech-battle-against-coronavi- rus-clashes-with-privacy-culture-idUSKBN21D1CC. 2020/03/18/hong-kong-uses-electronic-wristbands-to-enforce-coronavirus-quarantine.ht ml.individuals is debatable. Whether there was consent from Recife in northeast Brazil ha[d] been tracking 700,000 cellphones to Recife in northeast Brazil ha[d] been measures.” monitor compliance with social isolation dents-can-send-government-selfies-to-prove-quarantine-compliance/. sonal details and a photograph, and the selfies are verified by facial sonal details and a photograph, and is checked against the registered recognition “and its location stamp address.” coronavirus pandemic later than many other countries, started to fol- coronavirus pandemic later than low similar strategies. ing passengers to be quarantined for two weeks in order to prevent be quarantined for two weeks ing passengers to mandating the COVID-19, the government began further spread of smartphone app, in wristband, accompanied by a use of an electronic the self-quarantine measures. an effort to enforce users first upload a selfie to the app, then are “randomly prompted users first upload a selfie to the selfies”; the authorities will be throughout the day to submit more with the app’s selfie prompt within alerted if a user does not comply twenty minutes. tion data of specific users “to identify other people who may have un- tion data of specific users “to identify risk by coming into close knowingly been placed at increased cellphone tracking is used “to warn those self-quarantining that they is used “to warn those self-quarantining cellphone tracking far from home.” have travelled too Data Can Beat the Virus. But There Are Risks gers to enforce coronavirus quarantine Clashes with Privacy Culture antine Compliance 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 7 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 82 Side A 12/15/2020 11:16:45 12/15/2020 A 82 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 82 Side B 12/15/2020 11:16:45 M K C Y 41 [Vol. 54 39 . (May 9, 2017), https://www.who.int/ RG O (Mar. 23, 2020), http://www.michaelgeist.ca/ EIST EALTH G (2020), https://www.statnews.com/2020/04/02/corona H How Digital Contact Tracing Slowed Covid-19 in East TAT ICHAEL ORLD Covid-19 spreads too fast for traditional contact tracing. Covid-19 spreads too fast for traditional , S (Mar. 22, 2020), https://www.sciencemag.org/news/2020/03/ , M 40 , W CREIGHTON LAW REVIEW Cellphone tracking could help stem the spread of coronavirus. Is . (Apr. 15, 2020), https://hbr.org/2020/04/how-digital-contact-trac- note 24. CIENCE EV Section I. , S . R supra US Under a traditional medical surveillance regime, this pro- medical surveillance regime, Under a traditional Sharon Begley, . B 37 38 Episode 44: Michael Birnhack on Israeli Use of Cellphone Tracking to Combat See supra Contact Tracing See TraceTogether stores records of such encounters on the user’s TraceTogether stores records of such ARV This contact tracing approach helps ensure that authorities can approach helps ensure that authorities This contact tracing At its simplest, digital contact tracing might work like this: At its simplest, digital contact that involves the collection and “Israel has implemented a system The World Health Organization states that contact tracing occurs Organization states that contact The World Health 42 , H 36 39. 42. Yasheng Huang et al., 40. Kelly Servick, 41. 37. 38. 36. Geist, proximity with someone known to have” tested positive for COVID- known to have” tested positive proximity with someone 19. news-room/q-a-detail/contact-tracing. podcast/episode-44-michael-birnhack-on-israels-use-of-cellphone-tracking-to-combat- the-spread-of-coronavirus/. virus-spreads-too-fast-for-contact-tracing-digital-tools-could-help/. One may be con- cerned about traditional contact tracing, not only because it typically takes three days to complete the interview process, a period during which more people could be infected, but also because many interviewees find it challenging to remember all the people with whom they may have been in physical contact within the span of 14 days—the incuba- tion period of COVID-19. This concern was raised by Satchit Balsari during a virtual roundtable privacy and COVID-19 lecture at Harvard Law School on April 21, 2020. cellphone-tracking-could-help-stem-spread-coronavirus-privacy-price. cess takes a significant amount of time; however, digital contact amount of time; however, cess takes a significant efficient. process much faster and more tracing makes this isolate possible victims of COVID-19 transmission as quickly as possi- of COVID-19 transmission isolate possible victims COVID-19 recent close contact with confirmed ble, based on their carriers. Phones log their own locations; when the owner of a phone tests posi- Phones log their own locations; when recent movements is shared tive for COVID-19, a record of his/her other phones that recently came with health officials; owners of any their risk of infection and advised to close to that phone are notified of system will have to work out self-isolate. But designers of a tracking proximity among phones and the key details: how to determine the information is stored, who sees it, health status of users, where that and in what format. at-risk individuals, who may use of cellphone location data to identify they need to self-quarantine.” receive text messages warning that in three steps: contact identification, contact listing, and contact fol- identification, contact listing, in three steps: contact low-up. privacy the price? Asia New digital tools could help the Spread of Coronavirus Similarly, Singapore, a country famous for its “efficiency and no-non- Similarly, Singapore, a country famous for its “TraceTogether” app, which sense government,” is well known mobile phones in close proxim- “exchanges Bluetooth signals between ity.” 154 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 8 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 82 Side B 12/15/2020 11:16:45 12/15/2020 B 82 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 83 Side A 12/15/2020 11:16:45 , 46 155 GENCY A Mean- T ’ 44 OV G note 33. By con- This approach For example, in 45 supra 47 INGAPORE 48 : A S . (last visited Aug. 14, 2020), https:// OGETHER T ING S (last visited Aug. 14, 2020), https:// RACE T EALTH H see also note 42. INISTRY OF note 24. , M supra BIG BROTHER’S SURVEILLANCE BIG BROTHER’S supra Geist, (Mar. 26, 2020), https://www.economist.com/briefing/2020/03/26/countries- TraceTogether, Safer Together Id. TraceTogether Id. See Countries are using apps and data networks to keep tabs on the pandemic , This would facilitate the contact tracing procedure by speeding the contact tracing procedure This would facilitate The role of private sector actors is discussed in greater detail in the subsection Third, some countries and regions have aggregated and Third, some countries and regions provide valuable information to This approach not only serves to 43 44. 43. 46. 47. 48. of Press Release, Vodafone launches five-point plan to help counter the impacts 45. Huang et al., EBSITE CONOMIST M K E phone, so that when the Ministry of Health interviews a user as part the Ministry of Health interviews phone, so that when efforts, he/she can government’s contact tracing of the Singaporean authori- his/her TraceTogether data to government consent to send ties. while, South Koreans downloaded the “Corona 100m” app over one downloaded the “Corona 100m” while, South Koreans data from public a few weeks; the app “collects million times within [COVID-19] pa- that alert users of any diagnosed government sources along with the patient’s diagnosis tient within a 100-meter radius prior locations.” date, nationality, age, gender, and trast, “a proposal by German Health Minister Jens Spahn to allow individual smartphone tracking without a judicial order was blocked by the Social Democrats (SPD).” Italy, one of the countries that has suffered most severely from Italy, one of the countries that and anonymous heat map for the COVID-19, there is “an aggregated population movements in Lombardy region . . . to better understand COVID-19.” order to help thwart the spread of www.healthhub.sg/apps/38/tracetogether-app. www.tracetogether.gov.sg (providing access to the “TraceTogether” app). www.tracetogether.gov.sg (providing access are-using-apps-and-data-networks-to-keep-tabs-on-the-pandemic?fbclid=IWAR3RVEv3 t1XraqHzT17xBi11peT38m-TN-LsamAz_lsmKk0HhxwYWZiSg1A. up the process—the earlier users take necessary actions, the sooner reduction in the COVID-19 cases, and the greater the detection of at large. of coronavirus for the community risks of the spread below. anonymized data “to identify trends such as community outbreaks.” anonymized data “to identify trends officials about the most vulner- scientific researchers, but also informs so that they can dedicate able geographic locations and populations the COVID-19 outbreak (Mar. 18, 2020), https://www.vodafone.com/news-and-media/ vodafone-group-releases/news/vodafone-launches-five-point-plan-to-help-counter-the- impacts-of-the-covid-19-outbreak. Vodafone played an important role in this project. See id. ing-slowed-covid-19-in-east-asia; W should be differentiated from “spying law” regimes such as those in Slovakia and South be Korea involving “temporary legislation that would allow individual movements to tracked for the duration of the pandemic.” Koper & Busvine, A slightly more sophisticated version of this method is termed “flow- A slightly more sophisticated version tower data to calculate how many modeling,” which uses mobile phone as how quickly. people pass through places, as well 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 9 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 83 Side A 12/15/2020 11:16:45 12/15/2020 A 83 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 83 Side B 12/15/2020 11:16:45 M K , , C Y But see As a . (Feb. 9, [Vol. 54 49 In their EV 50 . R According to US 51 . B ARV , H 52 54 Aggregated mobility data could help fight COVID-19 identified “social-graph making” as an addi- identified “social-graph making” CREIGHTON LAW REVIEW note 50. Section I. supra There’s No Such Thing as Anonymous Data (explaining the breadth of information contact tracing apps can collect). The Economist Id. Countries are Using Apps and Data Networks to Keep Tabs on the Pandemic See id. See supra By mapping out which data subjects tend to meet repeatedly By mapping out which data subjects (Apr. 10, 2020), https://science.sciencemag.org/content/368/6487/145.2. note 47. [c]omparing the public response to interventions, in terms of [c]omparing the public response to county from one day to the rate of movement over an entire from normal times, can the next, measured against a baseline which recommendations on provide insight into the degree to We will need these esti- social distancing are being followed. we need to resume life mates, not only now but also when again without risking a major resurgence. Although these three strategies appear to be structurally Although these three strategies In addition to these three predominant models, researchers and In addition to these three predominant 53 51. Buckee, 52. 50. Caroline O. Buckee et al., 54. 53. 49. CIENCE S team of leading scholars in fields as diverse as communicable dis- scholars in fields as diverse as team of leading opined, “the esti- social science, and privacy law eases, quantitative flows of people are incredibly valuable.” mates of aggregate additional resources and adjust their priorities accordingly. additional resources article titled “Aggregated Mobility Data Could Help Fight COVID-19,” Mobility Data Could Help article titled “Aggregated shared that a map O. Buckee and her co-authors Professor Caroline or policies on impact of social distancing messaging that examines the understand patterns “will help county officials population mobility or policies are most effective.” what kinds of messaging 2015), https://hbr.org/2015/02/theres-no-such-thing-as-anonymous-data (arguing that there is no such thing as “anonymous data”). this research team: tional possible application of data tools for the COVID-19 pandemic, tional possible application of data to have already implemented this but states that nowhere is known tool. based on mobile phone tower data and machine learning, this ap- based on mobile phone tower data unfortunately poses high risk of proach could be an effective tool that civil liberties infringements. straightforward in that all three methods are ways for governments to straightforward in that all three methods there are often other stake- regulate individual citizens, in reality, holders involved as intermediaries in this process. journalists have identified a few other approaches to using digital journalists have identified a few that they have observed or data and technologies to combat COVID-19 coming weeks or months.are predicting to emerge in the For in- stance, Scott Berinato, supra 156 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 10 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 83 Side B 12/15/2020 11:16:45 12/15/2020 B 83 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 84 Side A 12/15/2020 11:16:45 XIOS 157 IMES note A . T Misinfor- IN . 287, 291 supra HOSE OL , F T . P ONTEMP (Mar. 10, 2020), https:// Press Release, ELPERS AND , 3 J. C H LJAZEERA see also S Identity, Procedures and Perform- ’ ATCH , A W IS ROTHER H The speed at which a country extin- B 56 IG : B Tracking Covid-19 Through Your Phone China’s V-shaped coronavirus recovery looks too good to ARGE Apple, Google team up on coronavirus contact tracing, L UCCUMBING TO S BIG BROTHER’S SURVEILLANCE BIG BROTHER’S Chris Nuttall, , Dion Rabouin, , Ina Fried, which possess the relevant experience, expertise, and the relevant experience, expertise, which possess (Mar. 31, 2020), https://www.axios.com/china-coronavirus-economic-re- 57 ICTURE AT 55 Christian von Soest & Julia Grauvogel, P XIOS See See, e.g. See, e.g. OLUNTARILY HE , A https://www.ft.com/content/5f49f7c4-9b1e-49bc-99d1-8a0d176a9bce. , Granted, one may question the incentives for those corporate Granted, one may question the Meanwhile, individual members of society, who are perhaps the Meanwhile, individual members V the most administrations are not always Because government see generally 57. 56. 55. M K B. T 48; (2017) (discussing six claims to legitimacy, one of which is “performance”). www.aljazeera.com/news/2020/03/misinformation-fake-news-spark-india-coronavirus- fears-200309051731540.html. guishes the threat of COVID-19 for its constituents can showcase to guishes the threat of COVID-19 leadership and the country’s over- other states the effectiveness of its all strength. On the bright side, the race to kill COVID-19, if only is beneficial to the world at large, as partially driven by this incentive, can easily become another country’s one country’s public health crisis the backdrop of globalization.nightmare due to mobility under On also led to attempts to, and ac- the other hand, these incentives have creates a vicious cycle of more cusations of, fabricating data, which analyzing the science behind accusations and hindrances of correctly COVID-19. manpower to quickly invent new public health products, are naturally invent new public health products, manpower to quickly and grandiose for transforming ambitious ideas suitable candidates theories into reality. such as prioritizing rep- powerhouses to cooperate with governments, responsibility and profit max- utation-building from corporate social take a more skeptical lens, one can imization; however, if one were to privacy-public health tradeoff, be- note further complexities in the a unique incentive.cause each of the stakeholders has Governments, legitimacy.especially authoritarian ones, value One way a govern- its performance maintaining the ment shows its legitimacy is through welfare and stability of society. covery-doubts-0e32c3c1-3759-495f-a757-ef8ced031254.html; Kunal Purohit, largest group of stakeholders in this global pandemic, most value free- largest group of stakeholders in this dom, coupled with the safety and health of themselves and their loved technology-savvy and resource-abundant institutions, technology and and resource-abundant institutions, technology-savvy Google, and companies such as Apple, telecommunications Vodafone, mation, Fake News Spark India Coronavirus Fears ance: How Authoritarian Regimes Legitimize Their Rule be true (2020) (Apr. 10, 2020), https://www.axios.com/apple-google-team-up-on-coronavirus-contact- tracing-6579b80f-f348-4c8e-ac87-d823b9abb4fb.html; 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 11 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 84 Side A 12/15/2020 11:16:45 12/15/2020 A 84 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 84 Side B 12/15/2020 11:16:45 M K C Y Our Pre- Id. 60 [Vol. 54 . J. (Apr. 9, T S ALL Among the ideas , W Such actions have 62 58 under the coronavirus 61 and corporate entities alike. 59 (Mar. 25, 2020), https://www.cbsnews.com/news/ , https://hackathon.common.vc/ourstory (last visited EWS Hackathons Target Coronavirus Spring Breakers Say Coronavirus Pandemic Won’t Stop , https://www.covid19mobility.org (last visited Aug. 14, 2020). CREIGHTON LAW REVIEW ACKATHON , CBS N note 60. H ETWORK , Agam Shah, N supra ATA mechanisms in which private individuals and technology cor- mechanisms in which private individuals D ORONAVIRUS See, e.g. Id. Despite all these cynicisms that one may have about each stake- cynicisms that one may have about Despite all these We can observe a number of cases in which grassroots movements We can observe a number of cases , C 59. For example, the COVID-19 Mobility Data Network is “a network of infectious 61. Shah, 62. 60. 58. Christopher Brito, OBILITY coronavirus, Hackathons had been “made popular decades ago by the coronavirus, Hackathons had been all-night sessions, often powered software community as communal, beverages”; by pizza and various caffeinated ones over that of strangers.ones over that of young people This explains why many spring break de- partying at Florida beaches over chose to continue already been in social distancing policies that had spite nationwide to be safe from March: they believed themselves place in early-to-mid due to their youth. the fatality of coronavirus 2020), https://www.wsj.com/articles/hackathons-target-coronavirus-11586424603; that emerged in those Hackathons and similar grassroots movements that emerged in those Hackathons ironically resulted in further worsening of the spread of the virus: an in further worsening of the spread ironically resulted restrictions in freedom in turn resulted in tighter attempt at gaining and overall civil liberties. one’s digital privacy been at least some and motivations, there have holder’s incentives backdrop, nothing quite stops the enthusiasm of coders from directing backdrop, nothing quite stops the brainstorm constructive solu- their energy and talent to collectively tions to the pandemic. True to the technology theme, everything is such as Zoom. accomplished via online platforms have helped governments monitor the population and ensure that in- have helped governments monitor social-distancing properly.dividuals are self-quarantining and For in- of Hackathons that specifically stance, there have been a number to the COVID-19 pandemic. focused on tackling issues related spring-break-party-coronavirus-pandemic-miami-beaches/. disease epidemiologists at universities around the world working with technology com- panies to use aggregated mobility data to support the COVID-19 response.” COVID-19 M Aug. 14, 2020). Its “goal is to provide daily updates to decision-makers at the state and local levels on Its “goal is to provide daily updates to decision-makers at the state and local levels how well social distancing interventions are working, using anonymized, aggregated data sets from mobile devices, along with analytic support for interpretation.” porations alike have contributed to governments’ realization of their porations alike have contributed public health and safety goals. Although the three aforementioned digital technologies and data to methods in which governments use may appear to be top-down, there combat COVID-19 in this Section efforts, including grassroots move- have been concurrent bottom-up ments from individuals, academia, Story Them From Partying positive 158 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 12 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 84 Side B 12/15/2020 11:16:45 12/15/2020 B 84 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 85 Side A 12/15/2020 11:16:45 159 How . 106 EV (Apr. 21, ILL note 14, at 2 L. R H SLO HE supra ., , T , 4 O Id. Data Protection by Design 63 individuals have effec- individuals have Experts: Coronavirus Pandemic ASKAR ET AL 65 After all, “paradoxically, pri- As Harvard Law School profes- and Massachusetts Institute of and Massachusetts 66 note 33. (Apr. 8, 2020), https://www.statnews.com/ 64 67 . (Mar. 24, 2020), https://www.govtech.com/ (Apr. 21, 2020), https://www.usatoday.com/ TAT Doug Fraser, supra ECH , S ODAY . T T “A data analytics platform designed by the software “A data analytics platform designed by the ’ After 9/11, we gave up privacy for security. Will we After 9/11, we gave up privacy for security. Through “a combination of GPS tracking, wireless Through “a combination of GPS tracking, But see OV Id. note 29. One reason why one may argue that some of the Id. , G , USA T Digital coronavirus data tracing would barter away Ameri- supra note 40. For GeoHealth, “that data would then be anonymized BIG BROTHER’S SURVEILLANCE BIG BROTHER’S Koper & Busvine, The MIT app constitutes an example of “human-centered tech,” as The MIT app constitutes an example of supra , Saiidi, Id. see also (describing how a person who tests positive for COVID-19 could use the app (describing how a person who tests positive ; See, e.g. Id. Id. The actions and behaviors of individual members of society are behaviors of individual members The actions and 66. 64. Servick, 67. Laurence H. Tribe, 63. 65. M K was “a location-based mobile application to track traffic in grocery mobile application to track was “a location-based social-distancing practices.” stores for effective (2017). 2020), https://thehill.com/opinion/technology/493648-how-human-centered-technology- Lee A. Bygrave, can-beat-covid-19-through-contact-tracing; (alteration in original). Under such circumstances, it is natural that those who test so positive for COVID-19 may “volunteer” to report this information as soon as possible, that by acting as responsible citizens, they may be blamed to a lesser extent if they infect others in the community. tively become Big Brother’s willing subjects by providing consent and Brother’s willing subjects by providing tively become Big the extent of volun- data to the apps, although volunteering to donate tariness and consent is contentious. vacy is a public value” that “begins with personal choices about what vacy is a public value” that “begins individuals share, and with whom.” Technology’s Private Kit: Safe Paths app, Technology’s Private 2020/04/08/coronavirus-will-we-give-up-privacy-for-security/. infor- MIT’s app “collects privacy, a way of publicly sharing infor- mation using a technique known as differential the individuals whose activities are mation gleaned from a data set without identifying represented.” health/Experts-Coronavirus-Pandemic-Tests-Limits-of-Privacy-Laws.html (“Part of the health/Experts-Coronavirus-Pandemic-Tests-Limits-of-Privacy-Laws.html (“Part of if privacy concern is that people could face discrimination, isolation, even retribution or their identity were revealed. . . . [I]t makes it less likely that those who are infected suspect they are will come forward for testing.”). company Ubilabs would compare users’ movement history to that of infected people, and company Ubilabs would compare users’ movement alerts based on how recently they may the GeoHealth app would show them color-coded have encountered the virus.” network data, and connections between phones via Bluetooth,” the GeoHealth app can network data, and connections between phones of another phone.” “detect when a phone comes within 1 meter perceived voluntariness is not purely voluntary may be attributed to the immense level of shame that some COVID-19 carriers have experienced. According to Lee Su-young, a psychiatrist at Myongji Hospital in South Korea, some coronavirus “[patients] were more afraid of being blamed than dying of the virus.” R and stored on a central server.” well as perhaps an illustration of “privacy by design.”well as perhaps an illustration of “privacy Margaret Bourdeaux et al., to “donate” or share his or her location history). Safe With regards to MIT’s Private Kit: among MIT, Facebook, Mayo Clinic, and Paths, the app was developed as a team project other organizations. Casey Ross, critical to a speedy return to pre-COVID-19 normalcy because their return to pre-COVID-19 normalcy critical to a speedy government social to the implementation of cooperation is essential policies.distancing and quarantine approaches For consent-based GeoHealth app such as the German human-centered tech can beat COVID-19 through contact tracing human-centered tech can beat COVID-19 Tests Limits of Privacy Laws and by Default: Deciphering the EU’s Legislative Requirements and by Default: Deciphering the EU’s Legislative make the same trade-off after Covid-19? can liberties: Laurence Tribe 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 13 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 85 Side A 12/15/2020 11:16:45 12/15/2020 A 85 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 85 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 . 311, 311 ECH T transparency, AW 69 . J. L note 34 (Latin American ARV ELEVANT TO THE supra R 68 , 33 H ANDSCAPE L EGAL Council Regulation 2016/679, 2016 O.J. (L 119) 1. L This Section starts with a brief overview of This Section starts with a brief overview However, Europe’s General Data Protection However, Europe’s General Data See , Cordova & Botero Arcila, 71 73 Enforcing Digital Privacy CREIGHTON LAW REVIEW Additionally, “[p]rivacy intrusions should be nec- Additionally, “[p]rivacy intrusions 70 See, e.g. ONTEXT Effy Vayena, Comparative Digital Privacy and COVID-19, Presentation VERVIEW OF THE 72 O Id. Id. Accord N OF CORONAVIRUS COVID-19 C has, until quite recently, The global governance of digital privacy Digital privacy law is a constantly-evolving field.Digital privacy law different The 73. Brian Yost, Note, 70. 71. 72. As the field of digital privacy law is greatly complex and involves significant 69. Under the General Data Protection Regulation (“GDPR”), consent to processing 68. sor Laurence H. Tribe stated, “the cumulative impact of those judg- Tribe stated, “the cumulative impact sor Laurence H. the sum of their parts.” ments far exceeds (2019). and Due Process. countries, such as Mexico, Colombia, and Brazil, have followed European countries’ models in terms of digital privacy laws to a great extent). some key laws that govern digital privacy in the public health context some key laws that govern digital that have substantial ramifications in Europe and the United States each of the dominant digital sur- in other regions, and then analyzes II of this Essay: (1) modeling veillance methods identified in Section tracking using cellphone loca- using aggregated data and (2) location enforcement and contact tion data, which includes quarantine tracing. essary and proportionate,” while data collection should be based on essary and proportionate,” while science instead of bias. at Harvard Law School (Mar. 24, 2020). been a “near anarchy.” differences across nations, this Essay does not attempt to be comprehensive in its analy- sis, but instead focuses on the dominant models in Europe and the United States. Due this to the two regions’ prominent role and leadership in the global economy, I believe approach is justified. sensitive personal data should be freely given, and there are far-ranging constraints on sensitive personal data should be freely given, and there are far-ranging constraints its use; i.e., data collected over the course of COVID-19 should not be stored indefinitely or used for another purpose. A. A 1. Privacy Governance The European Approach to Digital story/opinion/todaysdebate/2020/04/21/coronavirus-data-tracing-barter-away-liberties- laurence-tribe-editorials-debates/3000576001/. 160 III. LAW IN THE TIME IN ON DIGITAL PRIVACY ZOOMING \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 14 9-DEC-20 15:45 ways in which Big Brother surveils the masses in an effort to guard Brother surveils the masses in ways in which Big raises a myriad of legal questions.them against COVID-19 While cur- excep- allow for a public health crisis/emergency rent laws generally are still multiple digital privacy laws, there tion to otherwise-stricter expiration, valid legal concerns, including consent, 42655-cre_54-1 Sheet No. 85 Side B 12/15/2020 11:16:45 12/15/2020 B 85 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 86 Side A 12/15/2020 11:16:45 161 , EU Coor- 1, 1 (2019) . 635, 639-40 EG RIEF a context . The na- R B ISK EGIS Charter of Fundamen- J. R , 27 L The GDPR offers fur- The GDPR offers of the GDPR) or to 75 UROPEAN . Indeed, the GDPR pro- 74 , 10 E and also provides for the 6 and 9 ] additional rules apply , 2000 O.J. (C 364) 1 (EC), https:// electronic communication data , without the need to obtain the con- The EDPB elaborated in a press release The EDPB elaborated in a press . This applies[,] for instance[,] when 76 Articles 77 ([ A Higher Profile for Data Privacy public interest in the area of public health or to public interest in the area of public BIG BROTHER’S SURVEILLANCE BIG BROTHER’S GDPR is a broad legislation For the processing of tional laws implementing the ePrivacy Directive provide for tional laws implementing the ePrivacy can only be used by the the principle that the location data comply with another legal obligation. vides for the legal grounds to enable the employers and the vides for the legal grounds to enable to process personal data competent public health authorities in the context of epidemics, rules to apply to the processing of personal data in rules to apply to the processing of The the processing of personal data is necessary for the employers the processing of personal data is for reasons of such as the one relating to COVID-19 sent of the data subject protect vital interests such as mobile location data More specifically, in the fight against the coronavirus pandemic, in the fight against the coronavirus More specifically, As a general matter, under Articles 7 (“[r]espect for private and under Articles 7 (“[r]espect As a general matter, 75. The European Parliament Council and the Commission, 76. Council Regulation 2016/679, 2016 O.J. (L 119) 1. 77. Chair European Data Protection Board Press Release, Statement of the EDPB 74. Pam Greenberg, M K Regulation (“GDPR”), which took effect in May 2018, terminated the which took effect in May 2018, Regulation (“GDPR”), Union jurisdiction approach, extending European previous piecemeal Union countries. far beyond European (“Any global business that sells to or has European Union customers is subject to the (“Any global business that sells to or has European Union customers is subject to GDPR, regardless of where that business is based. The GDPR sets forth rules about how companies treat the personal data of EU citizens, even those purchasing U.S. products or services or living in the U.S.”). (2019). 16, on the processing of personal data in the context of the COVID-19 outbreak (Mar. 2020), https://edpb.europa.eu/sites/edpb/files/files/news/edpb_covid-19_20200316_ press_statement_en.pdf. ther specificity, requiring explicit and informed consent to the process- explicit and informed consent ther specificity, requiring data. ing of personal health www.europarl.europa.eu/charter/pdf/text_en.pdf; Hannah van Kolfschooten, that: Andrea Jelinek, who serves as Chair of the European Data Protection Andrea Jelinek, who serves as Chair data protection rules such as the Board (“EDPB”), opined that whilst taken,” “even in these exceptional GDPR “do not hinder measures the protection of the personal times, the data controller must ensure data of the data subjects.” family life”) and 8 (“[p]rotection of personal data”) of the Charter of 8 (“[p]rotection of personal data”) family life”) and “personal data of the European Union (“CFR”), Fundamental Rights on the basis of ‘consent.’”must be processed tal Rights of the European Union dination of Serious Cross-Border Threats to Health: The Implications for Protection of dination of Serious Cross-Border Threats to Health: The Implications for Protection Informed Consent in National Pandemic Policies 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 15 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 86 Side A 12/15/2020 11:16:45 12/15/2020 A 86 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 86 Side B 12/15/2020 11:16:45 M K C Y UIDANCE [Vol. 54 G ATA consent , D 80 , or with the 81 see also The EU’s response to the Ebola (Oct. 27, 2014), https://ec.europa.eu/commis anonymous N ’ However, at the E.U. level, law and However, at the OMM 79 C note 75, at 643. note 75, at 642; , Dec. 2019, at 1, 5. 78 Comparing Privacy Laws: GDPR v. CCPA supra supra note 74. UROPEAN CREIGHTON LAW REVIEW ORUM , E F supra note 18. As an overview, the CCPA: RIVACY Similar to that of “the GDPR, the CCPA’s impact is ex- Similar to that of “the GDPR, the P supra 83 (emphases added). More specifically, data processing in the context of 82 Id. operator when they are made operator when they [i.] Allows consumers the right to request a business to dis- [i.] Allows consumers the right to pieces of personal informa- close the categories and specific In the United States, there is an absence of a federal privacy law, In the United States, there is an absence is California’s Consumer A notable law that was recently passed of the individuals. Union had outbreak of Ebola, the European During the 2013-2016 UTURE OF 80. van Kolfschooten, 81. Ng, 83. Alice Marini et al., 82. Greenberg, 79. van Kolfschooten, 78. sion/presscorner/detail/en/MEMO_14_599. policy do not contain specific safeguards on ways “to properly balance specific safeguards on ways “to policy do not contain such as the right to individual fundamental rights[,] the protection of with the protection of public health.” informed consent pected to be global, given California’s status as the fifth largest global pected to be global, given California’s economy.” adopting necessary measures to combat COVID-19 and limit its speed has different le- adopting necessary measures to combat COVID-19 gal bases under the GDPR. These include Article 6(1)(c), (d) and (e), pursuant to which with a legal obligation to which the con- the processing is necessary i) “for compliance interests of the data subject or of another troller is subject”; ii) “to protect the vital of a task carried out in the public interest or natural person”; or iii) “for the performance in the controller.”in the exercise of official authority vested Further, public authorities the may process sensitive personal data based on Article 9(2)(b), (e), (h) and (i), where de- data processing is either necessary i) for the purposes of carrying out obligations rived from “employment and social security and social protection law”; ii) “for the pur- poses of preventive or occupational medicine, for the assessment of the working capacity as of the employee”; iii) “for reasons of public interest in the area of public health, such protecting against serious cross-border threats to health”; or iv) where the processing relates to personal data which is “manifestly made public by the data subject.” Council Regulation 2016/679, 2016 O.J. (L 119) 1. which, according to Omer Tene, who serves as vice president of the which, according to Omer Tene, Professionals, creates “great un- International Association of Privacy scope of and guardrails around le- certainty and disarray around the gitimate uses of personal information.” constitute one of the broadest on- Privacy Act (“CCPA”), which “would affecting businesses across the line privacy regulations in the U.S., country.” introduced several countermeasures against the epidemic, including countermeasures against the introduced several and monitoring on “contact listing, contact tracing, recommendations persons.” of possibly exposed outbreak in West Africa & F 2. Privacy Governance The United States Approach to Digital 162 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 16 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 86 Side B 12/15/2020 11:16:45 12/15/2020 B 86 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 87 Side A 12/15/2020 11:16:45 163 (Mar. of 84 CCESS Coronavirus A AW § 1798.140(b)(o) (Mar. 19, 2020), L D ODE DAGE , A . C , A IV George P. Slefo, . C AL But see California Consumer Privacy Act of 2018, note 84. Id. see also supra Under the CCPA, any information that is Under the CCPA, any information 86 Id. 85 BIG BROTHER’S SURVEILLANCE BIG BROTHER’S note 83, at 13 (quoting GDPR Articles 4(1), 9, Recitals 26-30). “The §§ 1798.100-1798.198 (West 2018). supra (internal citation added); ODE Id. . C Data Privacy Considerations for Coronavirus Data Tools Data Privacy Considerations for Coronavirus 87 IV tion that have been collected about them, as well as the collected about them, as well tion that have been it. and the purpose for collecting source of that information sale the right to request a business’ [ii.] Gives consumers their personal information without being discriminated their personal out. against for opting personal to ask businesses to delete [iii.] Allows consumers has been collected from them. information that general enforcement by the state attorney [iv.] Provides for unautho- right of action in certain cases of and for a private personal or disclosure of a consumer’s rized access, theft[,] information. The CCPA, like the GDPR, defines “personal information” and The CCPA, like the GDPR, defines exclude specific categories of Unlike the GDPR, which “does not personal data is defined as “any information relating to an identified or identi- fiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identi- fier such as a name, an identification number, location data, an online identi- fier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.” . C 86. Burstein & Zeltzer Hutnik, 87. California Consumer Privacy Act of 2018, C 85. 84. opt-out requirements on entities that “sell” per- The CCPA imposes notice and AL M K 28, 2020), https://www.adlawaccess.com/2020/03/articles/data-privacy-considerations- for-coronavirus-data-tools/. a “sale,” sharing personal information with a gov- While not under CCPA and would need to be ernment authority “would qualify as a disclosure accurately disclosed in the privacy policy.” (2018). This is similar to the GDPR, where: Marini et al., https://adage.com/article/digital/coronavirus-may-delay-enforcement-californias-con- sumer-privacy-law/2245291 (“Multiple trade bodies sent the California attorney general a letter on Thursday asking the Golden State to push back its enforcement of the Con- sumer Privacy Protection Act from July of this year to January 2021.”). C “reasonably capable of being associated with, or could reasonably be “reasonably capable of being associated or household constitutes “personal linked with” an individual device specifically includes “geolocation information,” and this definition data.” GDPR also explains in its recitals that in order to determine whether a person is identi- as fiable, ‘account should be taken of all the means reasonably likely to be used, such singling out, either by the controller or by another person’ to identify the individual directly or indirectly.” “personal data” broadly. “[t]he CCPA specifically personal data from its scope of application,” collecting and sharing of [cer- excludes from its scope of application including, notably for our tain] categories of personal information,” may delay enforcement of California’s consumer privacy law may delay enforcement of California’s consumer sonal information, where the word “sell” is defined to include disseminating, disclosing, sonal information, where the word “sell” is information to for-profit third parties in ex- or otherwise “making available” personal change for “monetary or other valuable consideration.” Aaron Burstein & Alysa Zeltzer Hutnik, 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 17 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 87 Side A 12/15/2020 11:16:45 12/15/2020 A 87 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 87 Side B 12/15/2020 11:16:45 M K C Y S 88 ’ [Vol. 54 ROTHER B IG a-vis concerns B The language of the The language of 90 Specific to the public 91 ONCERNS TO C EGAL L 42 U.S.C. § 1320d-6 (2012). TRATEGIES This may pose “threats to privacy and This may pose “threats to privacy S 93 However, as this law was passed in 1996, However, as this law was passed ELATED see also 92 note 83, at 11. -R CREIGHTON LAW REVIEW supra note 66. note 65; note 65. note 65. RIVACY Section I (discussing possible social changes in the COVID-19 out- URVEILLANCE P supra S supra supra supra 89 supra 94 ; Id. Id. IGITAL PPLYING D Big Brother has used digi- Among the predominant ways in which The HIPAA—the primary health privacy law— United States’ 91. Fraser, 89. 92. Ross, 93. 94. Ross, 88. Marini et al., 90. Ross, punishes any covered entity that knowingly discloses another person’s entity that knowingly discloses punishes any covered purposes, “medical information and protected health information.” information and protected health purposes, “medical HIPAA is sufficiently broad to permit disclosures if one acts “reasona- broad to permit disclosures if HIPAA is sufficiently and to someone that the disclosure is necessary bly and in good faith threat.” who could reasonably lessen the health crisis context, the HIPAA includes language that allows “fed- health crisis context, the HIPAA “officials have already exercised eral officials to waive privacy rules”; sharing of patient medical records those provisions to allow for greater to support increased access to for public health purposes and telemedicine services.” individual freedoms that lawmakers could not have contemplated at individual freedoms that lawmakers the time.” “when health data were primarily in the hands of hospitals, physician “when health data were primarily offices, and insurance companies—before Facebook, Amazon, Apple, American life,” it is arguably out- and Google became so pervasive in dated to a certain degree. break context, where we are seeing a shift from traditional medical surveillance regimes to one that is driven by the big data revolution). tal technologies and data to surveil his subjects, the use of aggregated tal technologies and data to surveil controversial vis-`and anonymized data is the least raised by digital privacy law. shared in its press release As the EDPB of statement, “public authorities should first aim for the processing location data in an anonymous way (i.e., processing data aggregated in a way that it cannot be reversed to personal data)” “to generate “individually identifiable health information.” “individually identifiable B. A 1. Anonymized Data Flow Modeling Using Aggregated, 164 health information information and protected Instead, one’s “medical [ and of Medical Information Act ] are covered by the Confidentiality Act” Portability and Accountability the Health Insurance (“HIPAA”). \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 18 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 87 Side B 12/15/2020 11:16:45 12/15/2020 B 87 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 88 Side A 12/15/2020 11:16:45 165 CIENCES . (Apr. 6, S OUND EALTH F H Assessing spread risk note 77. RONTIER Indeed, study shows F ERVER FOR supra S 100 How to Protect Privacy When Ag- 102 LECTRONIC REPRINT note 99. P European mobile operators share data for , E , Shengjie Lai et al., HE Unique in the Crowd: The privacy bounds of supra : T IV see, e.g. RX ED 98 (Mar. 25, 2013), https://www.nature.com/articles/srep0 , M note 50. note 50; (Mar. 18, 2020), https://www.reuters.com/article/us-health- EPORTS supra supra Information about a person’s location is often suffi- Information about a person’s location . R BIG BROTHER’S SURVEILLANCE BIG BROTHER’S EUTERS 95 CI 99 , R , S According to Buckee and her co-authors, “[t]he more such and her co-authors, “[t]he more According to Buckee Despite this, the EFF has also found aggregation to pre- Despite this, the EFF has also 97 Hoffman-Andrews & Croker, Deutsche Telekom, for example, “has shared aggregated data for example, “has shared aggregated Deutsche Telekom, Id. Id. See 101 tml; Elvira Pollina & Douglas Busvine, 96 However, one still has reasons to remain cautious. As the Elec- However, one still has reasons to Buckee and her co-authors have advocated against the use of indi- have advocated against Buckee and her co-authors 96. Buckee et al., 98. 97. Buckee et al., 99. Jacob Hoffman-Andrews & Andrew Crocker, 95. Press Release, European Data Protection Board 100. 102. 101. Yves-Alexandre de Montjoye et al., M K reports on the concentration of mobile devices at a certain location of mobile devices at reports on the concentration (‘cartography’).” 2020), https://www.eff.org/deeplinks/2020/04/how-protect-privacy-when-aggregating-lo cation-data-fight-covid-19. that researchers could uniquely characterize fifty percent of the popu- that researchers could uniquely characterize selected time and location data lation using only two randomly points. 1376. coronavirus-europe-telecoms/european-mobile-operators-share-data-for-coronavirus- fight-idUSKBN2152C2. cient by itself to re-identify individual location data, for “[s]omeone cient by itself to re-identify individual given office building and a single who travels frequently between a those habits and therefore identifi- family home is probably unique in sources.” able from other readily identifiable analyses are initiated and concluded openly, and in accordance with analyses are initiated and concluded trust and our ability to produce the law, the greater will be the public reliable analytic insights.” serve individual privacy to be potentially useful, while it still consid- serve individual privacy to be potentially role despite the anonymous and ers consent to play an important method. aggregated form of data collection with Germany to help measure social distancing, in compliance with help measure social distancing, with Germany to EU laws.” tronic Frontier Foundation (“EFF”) has warned, “there’s a difference tronic Frontier Foundation (“EFF”) and ‘anonymized’ or ‘deidentified’ between ‘aggregated’ location data location data.” vidual data and instead recommend the use of aggregated and instead recommend the use vidual data and been successful believing that there have already anonymized data, have managed to and Europe where governments precedents in Asia COVID-19 health trade-off in aggregating juggle the privacy-public data. of Wuhan novel coronavirus within and beyond China, January-April 2020: a travel of Wuhan novel coronavirus within and network-based modelling study gregating Location Data to Fight COVID-19 coronavirus fight human mobility (Mar. 9, 2020), https://www.medrxiv.org/content/10.1101/2020.02.04.20020479v2. full.pdfˇ 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 19 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 88 Side A 12/15/2020 11:16:45 12/15/2020 A 88 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 88 Side B 12/15/2020 11:16:45 M K , C Y [Vol. 54 Although 105 note 65. However, as much TraceTogether Privacy Safe- , many legal challenges re- supra , . 107 See, e.g. note 34. note 14, at 12. supra note 84. supra ., 108 supra ASKAR ET AL note 66; Bourdeaux et al 104 CREIGHTON LAW REVIEW . (last updated June 1, 2020), https://www.tracetogether.gov.sg/ supra ING Section III(A). This Essay will not address expiration/deletion issues S , Cordova & Botero Arcila, Ross, These specificities will hopefully alleviate some of the will hopefully alleviate some These specificities in the absence of anonymity, TOF ’ See OV 106 103 See supra Countries are Using Apps and Data Networks to Keep Tabs on the Pandemic See, e.g. , G note 47. Overall, this data aggregation method, based on our analysis of aggregation method, based on Overall, this data Per Article 15 of Europe’s ePrivacy Directive, when it is not plau- Per Article 15 of Europe’s ePrivacy Cellphone tracking methods, including quarantine enforcement Cellphone tracking methods, including Contact Tracing 108. 107. Granted, some contact tracing apps under the category of “human-centered 104. Because of the nature of my legal analysis, I find it easier to group quarantine 105. 106. 103. & Zeltzer Hutnik, Burstein the GDPR in Section III(A)(1), is generally compliant with European III(A)(1), is generally compliant the GDPR in Section HIPAA, and other in the U.S., the CCPA, privacy laws. Meanwhile, are expected to offer “examples of what safeguards privacy laws also such standards data as anonymized, and employing reasonably treat well-intentioned privacy mishaps despite can help avoid unnecessary efforts.” at a glance, the unprecedented crisis caused by the COVID-19 out- at a glance, the unprecedented crisis to easily qualify under the exemp- break around the world appears as well as similar laws from other tions of both the GDPR and HIPAA, regions, of that type of technology is still a work in progress, this Essay focuses more on the of that type of technology is still a work in progress, this Essay focuses more on already-widely adopted methods that governments have used. main, including issues of consent, expiration/deletion, transparency, main, including issues of consent, proportionality, and necessity. tech” arguably does preserve anonymity through putting to practice “privacy by design” principles. enforcement and contact tracing in the same sub-sub-section because laws tend to focus on the similarities between them as both are based on cellphone location data tracking. common/privacystatement; R in detail, because as we are still very much in the middle of the pandemic, there has in detail, because as we are still very much in the middle of the pandemic, there been relatively scarce focus on this longer-term issue, although some apps, including TraceTogether and MIT’s app, pride themselves in forward-looking considerations such as the erasure of data after the end of COVID-19. EFF’s concerns. In any case, moving forward, different authorities In any case, moving forward, different EFF’s concerns. consent-based con- keep in mind the relevant should, as best practice, in the context of aggregated data. siderations even sible to solely process anonymous data, member states may introduce sible to solely process anonymous security and public secur- “legislative measures pursuing national and contact tracing, are more worrying with regards to privacy con- and contact tracing, are more worrying cerns. poses low civil liberties If flow modeling using aggregated data rate as “medium” and contact risk, quarantine enforcement would of the level of risk these methods tracing would rate as “high” in terms and privacy rights. pose to cellphone users’ civil liberties guards supra 2. Quarantine Enforcement and The Cellphone Tracking Methods: 166 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 20 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 88 Side B 12/15/2020 11:16:45 12/15/2020 B 88 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 89 Side A 12/15/2020 11:16:45 : 111 167 the vul- OUCHPAPER T Germany, 115 (Mar. 20, 2020), LUE 110 B UNN D note 77. IGHT , L IBSON supra (Apr. 12, 2020), https://www. , G 112 AMBRIDGE C These critiques include this tech- OF note 34. . Ross Anderson, a professor of security see also COVID-19: The German Infectious Dis- ; 114 NIV 113 Id. supra ., U AB L Contact Tracing in the Real World note 40. BIG BROTHER’S SURVEILLANCE BIG BROTHER’S OMPUTER supra ., C In reality, some laws satisfying these criteria are in the making: for in- SCH This emergency legislation, however, comes with the caveat legislation, however, comes with This emergency R Id. Id. Id. Further reflecting on the general legal principles of proportional- Further reflecting on the general 109 113. Cordova & Botero Arcila, 110. 115. According to Anderson, this accounts for how “a contact tracer in Singapore is 114. Ross Anderson, 112. 109. Data Protection Board Press Release, European 111. Servick, ECURITY M K S ity.” nerability of such smartphone apps to trolling or other bad-inten- nerability of such smartphone apps which has some of Europe’s most stringent data privacy protections, of Europe’s most stringent data privacy which has some to share loca- to “compel a technology company allows the government security.” individual in the interest of national tion data on an https://www.gibsondunn.com/covid-19-german-infectious-diseases-protection-act-what- makes-you-stay-at-home/. lightbluetouchpaper.org/2020/04/12/contact-tracing-in-the-real-world/. able to phone you and tell you that the taxi driver who took you yesterday from Orchard Road to Raffles has reported sick, so please put on a mask right now and go straight home.” nique’s lack of anonymity, the authorities’ access to other types of data nique’s lack of anonymity, the authorities’ and credit-card records, such as public transport ticketing engineering at the computer laboratory at the University of Cam- engineering at the computer laboratory concerns about contact tracing, bridge, has also raised at least seven which it is as privacy-complying as calling into question the extent to others may consider it to be. stance, in late March, the German Health Ministry had drafted changes to the Infection in- Protection Act to allow the tracking of individuals who were in contact with those fected with the novel coronavirus. that those measures must constitute “a necessary, appropriate, and must constitute “a necessary, that those measures within a democratic society.” proportionate measure ity, necessity, and appropriateness in the COVID-19 context, a num- ity, necessity, and appropriateness regarding the effectiveness of ber of experts have voiced skepticism location tracking altogether. Some advise policymakers to exercise because “locational data is not very caution with these tools, partially people a few meters apart crossed accurate,” as “it can convey that two were on the same bus or in two paths, but it won’t distinguish if they separate cars at a stoplight.” eases Protection Act – What Makes You Stay at Home 2020] law scholar to Sebastian Golla, a data protection However, according mass University of Mainz, “indiscriminate at the Johannes Gutenberg German laws: to lacks a legal basis” under tracking of individuals “coronavirus, Ger- users who have or might carry track cell-phone would need to pass laws specify- many and other European countries to a certain population, for ing how data collection would be restricted a certain time, and for a certain purpose.” \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 21 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 89 Side A 12/15/2020 11:16:45 12/15/2020 A 89 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 89 Side B 12/15/2020 11:16:45 M K , C Y 119 121 120 ONG K [Vol. 54 ONG Given the , H 117 ATA D (Mar. 30, 2020), https:// in practice, it is “un- ERSONAL 122 RIVACY P P R FOR ’ NSIDE Greek Data Protection Authority Issues , I OMM C skepticisms and criticisms such as skepticisms and 118 RIVACY and the outdated nature of some of the and the outdated note 14, at 9 (“In South Korea, fraudsters quickly note 14, at 9 (“In South Korea, fraudsters , P 116 note 14, at 2. supra ., note 114. CREIGHTON LAW REVIEW supra ., supra Privacy Commissioner Responds to Privacy Issues Arising from , Section II(A). ASKAR ET AL R Council Regulation 2016/679, 2016 O.J. (L 119) 1. Council Regulation 2016/679, 2016 O.J. (L ASKAR ET AL Pursuant to Article 2(1) of the GDPR and Article 2 of Law 4624/2019” of Supra See, e.g. See See Partially, the answer would depend on the type of data that is would depend on the type Partially, the answer In terms of legal concerns about consent and transparency, we In terms of legal concerns about Greece (which implemented the GDPR), “the legal framework for the process- ing of personal data applies solely in cases where personal data is processed wholly or partly by automated means or where it otherwise forms part of a filing system or is intended to form part of a filing system. As a result, al- whether a data for example though information provided orally concerning – – subject has been infected by COVID-19 or whether one’s body temperature is higher than normal does not fall within the scope of the GDPR, where [sic] it not recorded. 117. Anderson, 119. 118. R 122. 120. Dan Cooper & Spyridon Goulielmos, 121. 116. tioned acts from hackers, tioned acts from relative ease at which such technologies can be exploited to “expand such technologies can be exploited relative ease at which the most pri- limit individual freedoms and expose mass surveillance, individuals,” vate details about www.insideprivacy.com/covid-19/greek-data-protection-authority-issues-guidelines-on- data-protection-and-coronavirus/. Cooper and Goulielmos’s article uses Greece as an illustration: these are valid in casting doubt on the proportionality, necessity, and casting doubt on the proportionality, these are valid in tracing using of quarantine enforcement and contact appropriateness technologies. cellphone tracking the GDPR, data can be either collected from these approaches. Under or not; the former would be a related to the health of the data subject subject to stricter regulation. special category of personal data technologies involved due to the fact that some of the Internet infra- due to the fact that some of technologies involved years ago are difficult to update. structure from thirty began blackmailing local merchants and demanding ransoms to not (falsely) report began blackmailing local merchants and business.themselves as sick and having visited the force Additionally, bad actors may for purposes other than disease containment, individuals to provide their location data such as for immigration or police purposes.”). fraud Indeed, there are many forms of skilled fraudsters can exploit.involved with these digital technologies that Unfortu- nately, bad actors can be quite creative. may return to the Hong Kong quarantine enforcement example. may return to the Hong Kong quarantine Guidelines on Data Protection and Coronavirus Mandatory Quarantine Measures Id. While personal data such as one’s travel history to a country with a While personal data such as one’s that one’s relatives or colleagues high rate of COVID-19 cases or data not constitute this special cat- have been infected by COVID-19 would has recently received health- egory of data, whether the data subject special category of personal data. care services does fall within this to have obtained consent from indi- Despite that authorities claimed them, viduals under quarantine before tracing 168 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 22 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 89 Side B 12/15/2020 11:16:45 12/15/2020 B 89 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 90 Side A 12/15/2020 11:16:45 126 169 Regarding consent was Id. how 128 However, Chan 124 in accordance with the law For instance, passenger note 65. 123 supra In other apps, it is also difficult to In other apps, it note 34. 125 Ross, as to [under] what circumstances these func- See supra note 14, at 3. It is at least reassuring that designers of note 14, at 8. free choice These functions can only be activated by the persons under supra supra 127 ., ., note 29. BIG BROTHER’S SURVEILLANCE BIG BROTHER’S from the persons under quarantine note 18 (emphasis added). supra , who have a supra that consent was obtained.” that consent was consent ASKAR ET AL ASKAR ET AL Id. how Even if consent was truly obtained to everyone’s satisfaction, still, Even if consent was truly obtained legal compliance of cellphone All in all, despite the surface-level [b]efore the quarantine measures were implemented, the authority has ob- [b]efore the quarantine measures were implemented, tained tions would be activated, and whether the requisite information would be pro- vided via other means. quarantine for access to their relevant personal data, including the situation of the quaran- tine premises, and for the usage of commonly-used mobile applications and imaging equipment. (emphases added). However, the government did not specify 123. Ng, 128. R 127. Cordova & Botero Arcila, 125. 124. Saiidi, 126. R M K clear consent, the Commissioner underscores that: obtained. “soon learned the messaging apps were not an option and all passen- messaging apps were not an option “soon learned the wristbands.” gers must wear the Declan Chan, whom Saiidi interviewed, “filled out a form which sug- Saiidi interviewed, “filled out Declan Chan, whom location with the had the option of sharing their gested passengers and WhatsApp, or platforms, like WeChat government via messaging an electronic wristband.” by agreeing to wearing obtain “real” consent, because signing up to these apps often involves because signing up to these obtain “real” consent, that a non- to “incomprehensible” language reading and consenting of real choice.” and consider to be a “lack lawyer can find daunting, these newer apps have had the legal principles in mind from the very get-go—a good illustration of “privacy by design.” others question the sufficiency of consent. Cordova and Botero Arcila, others question the sufficiency of is an insufficient protection for instance, commented that “consent gives consent,” it would be chal- mechanism” because “[o]nce a citizen control about how their informa- lenging “for individuals to exercise tion is being used.” enforcement and contact location tracking techniques in quarantine finds that existing strategies tracing, a more nuanced legal analysis may not hold up to closer examinations. The hope would be that “citi- that are “open source, secure, and zen-centric, privacy-first solutions” Kit: Safe Paths, will truly “re- decentralized,” such as MIT’s Private for disease containment in an epi- present the next generation of tools themselves to be. demic or a pandemic,” as they claim Id. (Feb. 12, 2020), https://www.pcpd.org.hk/english/media/media_statements/press_ 20200211.html. the Commissioner highlights that the collec- Among other key points, is “for a lawful purpose . . . . for the tion of location data of persons under quarantine and the general public” alike. interest of the persons under quarantine 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 23 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 90 Side A 12/15/2020 11:16:45 12/15/2020 A 90 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 90 Side B 12/15/2020 11:16:45 M K C Y 129 131 But Quotes HRONICLE [Vol. 54 . C TY (2009), https:// . (Feb. 25, 2016), C 10VPN (Mar. 20, US OP B , T (Apr. 3, 2020), https:// times of crises and EAL EXINGTON , R 130 , L REAKONOMICS , F URONEWS IMF: Coronavirus pandemic will , E Why the Global Recession Could Last Id. While different digital privacy laws have been While different digital privacy laws COVID-19 Digital Rights Tracker (Apr. 1, 2020), https://www.nytimes.com/2020/04/01/business/ CREIGHTON LAW REVIEW 132 Telling the truth about SME life today IMES Sections I and II. NEVER LET A CRISIS GO TO WASTE , Natalie Huet & Sasha Vakulina, , N.Y. T See supra See, e.g. BEYOND: SYNTHESIS AND LOOKING AHEAD BEYOND: SYNTHESIS As Winston Churchill once said, “never waste a good crisis.” once said, “never waste a As Winston Churchill As of April 2020, in response to the outbreak of COVID-19, As of April 2020, in response Jerry Bellune, 130. 131. Samuel Woodhams, 132. 129. Low, Andrew IV. AND THE NOVEL CORONAVIRUS, COUNTERING freakonomics.com/2009/08/13/quotes-uncovered-who-said-no-crisis-should-go-to-waste/ (noting the expression has been used in the context of medical emergencies by M.F. Weiner). https://realbusiness.co.uk/as-said-by-winston-churchill-never-waste-a-good-crisis/. 2020), https://www.top10vpn.com/news/surveillance/covid-19-digital-rights-tracker/ (last updated July 3, 2020). By September 2020, the number of countries using contact tracing apps increased to 50, and the number of countries using alternative digital tracking measures rose to 35. www.euronews.com/2020/04/09/imf-coronavirus-pandemic-will-cause-worst-economic- slump-since-great-depression; Peter S. Goodman, uncertainty such as the one we live in at the moment calls for opti- uncertainty such as the one we live mism and introspection. This includes thoughtful research and re- including the ever-evolving field of form on current laws and policies, digital privacy law. Only through such reflections can society move crises that pose new challenges to forward and prepare for any future becomes an ever-more-om- the human race, especially as technology to counter new challenges. nipotent force that we could harness contact tracing apps and twenty-two twenty-three countries have used digital tracking measures. countries have actively used alternative overall generous in terms of their public health crisis exceptions, such overall generous in terms of their economy/coronavirus-recession.html. see Uncovered: Who Said No Crisis Should Go to Waste? cause worst economic slump since Great Depression a Long Time (Mar. 26, 2020), https://www.lexingtonchronicle.com/business/never-let-crisis-go-waste (attributing a similar version of the quote to Rahm Emanuel); Fred Shapiro, As Section II shows, Big Brothers from different jurisdictions have As Section II shows, Big Brothers at an unprecedented scale.used digital technology and data This moved past traditional medical sur- demonstrates the way society has featuring public and private veillance to digital-based surveillance sector players alike. 170 an originally vi- appears to have forcefully put The novel coronavirus world on halt.brant, inter-connected that It is hardly imaginable for business or lei- one could easily fly anywhere merely months ago, beginning to see countries around the world are sure, and now, normal of sorts.lockdowns as a new our- As we unwillingly confront global economic cri- promises to be an unprecedented selves with what Depression, sis that would likely rival the Great \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 24 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 90 Side B 12/15/2020 11:16:45 12/15/2020 B 90 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 91 Side A 12/15/2020 11:16:45 , 171 , Bill See, e.g. . (Feb. 5, 2019), https:// TR . C India Population 2020 (Live) SCH note 34 (raising five suggestions R (Apr. 10, 2020, 7:46 PM), https:// EW What actions should nations What actions should How can authorities further supra How can different jurisdictions , P Smartphone Ownership Is Growing Rap- 133 135 WITTER 134 note 34. supra 136 Coronavirus: NHS contact tracing app to target 80% of Coronavirus: NHS contact tracing app to ., https://worldpopulationreview.com/countries/india-popula- EV Cordova & Botero Arcila, BIG BROTHER’S SURVEILLANCE BIG BROTHER’S R , BBC (Apr. 16, 2020), https://www.bbc.com/news/technology- Leo Kelion, , Kai-Fu Lee (@kaifulee), T See OPULATION See generally See, e.g. P Many open questions remain: how can governments and private remain: how can governments Many open questions These call for further studies and discussion much beyond the end These call for further studies and 136. Some legal scholars have already been working on this matter. 135. 134. For instance, according to the Pew Research Center, in India—the second most 133. ORLD M K W exceptions should constitute no legal loophole for any unnecessary or constitute no legal loophole for exceptions should lives and personal into residents’ private disproportional intrusion data. download consent- further encourage individuals to sector cooperators at a higher rate? based digital tools Proposal, Lilian Edwards et al., The Coronavirus (Safeguards) Bill 2020: Proposed Pro- 6, tections for Digital Interventions and in Relation to Immunity Certificates (May 2020). www.pewresearch.org/global/2019/02/05/smartphone-ownership-is-growing-rapidly- around-the-world-but-not-always-equally/. Meanwhile, in Latin America, “approxi- mately 66% of the population has a smartphone and about 52% has access to mobile Internet.” Cordova & Botero Arcila, for lawmakers and policymakers, including: a data minimization policy, limitation of for lawmakers and policymakers, including: a data minimization policy, limitation the amount of time the data can be stored to only cover the duration of the COVID-19 pandemic, as well as transparency with the “public and open access to the rules[ ] to allow monitoring and evaluation by the courts and civil society”). twitter.com/kaifulee/status/1248774479309766656?s=20 (“Opt-in contact tracing won’t twitter.com/kaifulee/status/1248774479309766656?s=20 bluetooth, 40% people infected voluntarily work. If 10% people opt-in, 50% always-on pairwise contacts get reported.”).report, then only 10%*10%*50%*40%=0.2% is an Lee of Google China.AI entrepreneur and the former president advis- According to experts Service (“NHS”), for a contact-tracing app to ing the United Kingdom National Health of current smartphone owners would need to help stop the coronavirus pandemic, 80% of the Singaporean population downloaded use it; however, as of mid-April, only 12% TraceTogther. take to assist particularly vulnerable and marginalized groups—such vulnerable and marginalized take to assist particularly populations, who the poor, the elderly, and rural as the homeless, in digital govern- means of participating often lack the technological benefit individuals that ultimately serves to ance during COVID-19 through information transparency? the immediate duration of the reform privacy laws and policies beyond novel coronavirus pandemic? collaborate together, putting aside non-altruistic political incentives, collaborate together, putting aside for the greater good? In what ways can authorities keep private sector for the deletion of private data af- actors and themselves accountable ter this public health crisis ceases? tion/ (last viewed Aug. 14, 2020); Laura Silver, 52294896. approximately 17.7% of the global popula- populous country in the world comprising tion—only 24% of all adults report owning a smartphone. of the COVID-19 pandemic. While it is heartening to note many cross- underway with an intense fo- disciplinary collaborations are already idly Around the World, but Not Always Equally smartphone users 2020] \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 25 9-DEC-20 15:45 C Y 42655-cre_54-1 Sheet No. 91 Side A 12/15/2020 11:16:45 12/15/2020 A 91 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 91 Side B 12/15/2020 11:16:45 M K C Y [Vol. 54 note 50. it is a critical goal 137 supra note 9; Buckee et al., supra CREIGHTON LAW REVIEW , Allen et al., See, e.g. 137. cus on unresolved questions posed by COVID-19, cus on unresolved of this Essay to further encourage such explorations, which will affect encourage such explorations, of this Essay to further as generations to individuals at large, as well global societies and come. 172 \\jciprod01\productn\C\CRE\54-1\CRE106.txt unknown Seq: 26 9-DEC-20 15:45 42655-cre_54-1 Sheet No. 91 Side B 12/15/2020 11:16:45 12/15/2020 B 91 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 92 Side A 12/15/2020 11:16:45 M K C Y 42655-cre_54-1 Sheet No. 92 Side A 12/15/2020 11:16:45 12/15/2020 A 92 Side No. Sheet 42655-cre_54-1 42655-cre_54-1 Sheet No. 92 Side B 12/15/2020 11:16:45 M K C Y ii \\jciprod01\productn\C\CRE\47-4\rom-no.txt unknown Seq: 2 22-OCT-14 15:07 42655-cre_54-1 Sheet No. 92 Side B 12/15/2020 11:16:45 12/15/2020 B 92 Side No. Sheet 42655-cre_54-1