Articles by Affiliated Faculty

The following articles demonstrate the breadth of issues researched by affiliated faculty -- from antitrust, to telecommunications policy, to the evolution of the Fourth Amendment's Search Clause in the digital age.

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2010

Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization

Author: Paul Ohm
Date Published: 2010

Computer scientists have recently undermined our faith in the privacy-protecting power of anonymization, the name for techniques for protecting the privacy of individuals in large databases by deleting information like names and social security numbers. These scientists have demonstrated they can often 'reidentify' or 'deanonymize' individuals hidden in anonymized data with astonishing ease. By understanding this research, we will realize we have made a mistake, labored beneath a fundamental misunderstanding, which has assured us much less privacy than we have assumed. This mistake pervades nearly every information privacy law, regulation, and debate, yet regulators and legal scholars have paid it scant attention. We must respond to the surprising failure of anonymization, and this Article provides the tools to do so.

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2008

The Myth of the Superuser: Fear, Risk, and Harm Online

Author: Paul Ohm
Date Published: 2008

Fear of the powerful computer user, "the Superuser," dominates debates about online conflict. This mythic figure is difficult to find, immune to technological constraints, and aware of legal loopholes. Policymakers, fearful of his power, too often overreact, passing overbroad, ambiguous laws intended to ensnare the Superuser, but which are used instead against inculpable, ordinary users. This response is unwarranted because the Superuser is often a marginal figure whose power has been greatly exaggerated.

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The Olmsteadian Seizure Clause

Author: Paul Ohm
Date Published: 2008

The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its counterpart, the Search clause, has evolved through a steady progression of Supreme Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to modern privacy concerns by extending Constitutional protection to situations that satisfy the reasonable expectation of privacy test. While imperfect, the evolved Search clause has kept the protections of the Fourth Amendment relevant in an age of digital evidence, ubiquitous communication networks, and increasingly sophisticated and invasive surveillance capabilities.

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Rethinking Merger Remedies: Toward a Harmonization of Regulatory Oversight With Antitrust Merger Review

Author: Phil Weiser
Date Published: Forthcoming

Most debates over the structure of merger review in the telecommunications industry focus on the criticism that the role of the Federal Communications Commission (FCC) is entirely redundant in light of the review conducted by the antitrust agencies. The FCC's lack of a consistently applied standard only reinforces such criticisms. There are, however, cases where the FCC's review of a merger - and imposition of conditions that complement the existing regulatory regime - enable the antitrust agencies to clear mergers that would otherwise pose potential objections

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2007

Standardizing the Law of Antitrust Oversight of Standard Setting in a Global Economy

Author: Phil Weiser
Date Published: July 27, 2007

The stance of antitrust oversight of standard setting activities remains a work-in-progress. Over time, antitrust authorities have grown increasingly hospitable to cooperative standard setting efforts whereby jointly developed standards will facilitate the development of new products or services. In the information industries, such standards are ubiquitous and, moreover, are set by international standard setting organizations (SSOs) like the Internet Engineering Task Force (IETF). To be successful, SSOs must develop strategies to prevent firms from patenting technologies used in official standards and charging exorbitant royalties once a standard is adopted. In particular, SSOs face a range of options in terms of policies that govern the use of patents in official standards - even within the popular strategy of mandating reasonable and non-discriminatory (RAND) access to patents necessary to practice a standard. With multi-jurisdictional oversight of SSOs, the role of antitrust law - if inconsistent and overly aggressive - could be counterproductive.

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Digital Crossroads: American Telecommunications Policy in the Internet Age

Authors: Jon Nuechterlein, Phil Weiser
Date Published: March 2007

Since the passage of the Telecommunications Act of 1996, when Congress fundamentally reoriented the existing regulatory scheme, general readers, students, and practitioners have all sought out a clear and cogent explanation of the intricacies of telecommunications competition policy in the Internet age. Digital Crossroads meets this need, focusing on the regulatory dimensions of competition in wireline and wireless telephone service; competition among rival platforms for broadband Internet service and video distribution; and the Internet's transformation of every aspect of the telecommunications industry, particularly through the emergence of "voice over Internet protocol" (VoIP).

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Collaborative Networks and the Alaska Land Mobile Radio System: A Framework for Analyzing Inter-Agency People Problems Which Frustrate Public Safety Interoperability

Authors: Brad Bernthal, Steve Robertson, Justin Turner
Date Published: 2007

Human factors are often emphasized as foremost among barriers to achieving interoperable communications. This paper places analysis of public safety interoperability in the broader discussion of collaborative networks, where entities bridge organizational boundaries, combine resources, and pursue joint goals.

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The Analog Hole and the Price of Music: An Empirical Study

Authors: Shannon Gunjai, Paul Ohm, Douglas Sicker
Date Published: 2007

We present the results of a series of surveys of college-aged consumers of music exploring their willingness to pay for digital downloads of music and measuring the impact of the so-called analog hole. The analog hole refers to a perhaps - unavoidable vulnerability of most digital rights management systems. In short, because people cannot consume digital information directly, every device that performs digital content must convert the digital information into an analog signal, which is very difficult to keep from being copied.

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Legal Issues Surrounding Network Monitoring Research

Authors: Dirk Grunwald, Paul Ohm, Douglas Sicker
Date Published: 2007

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Communicating During Emergencies: Toward Interoperability and Effective Information Management

Author: Phil Weiser
Date Published: 2007

The suboptimal state of communications technology used by public safety agencies has emerged as a high profile political issue. In most cases, public safety agencies are able only to communicate using antiquated networks, engineered solely for providing voice communications and unable to interoperate beyond a select number of users. This type of system fails to provide the type of economies of scale, network flexibility, or the broader functionalities routinely used by the military and private sector enterprises. The challenge facing policymakers is thus how to develop a next generation architecture for public safety and spur adoption of a new set of technologies that provide far greater functionality than today's systems as well as interoperate with a broad array of organizations involved in emergency response.

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Should Property or Liability Rules Govern Information?

Authors: Mark Lemley, Phil Weiser
Date Published: 2007

This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead of a property rule. Notably, where injunctive relief cannot be confined to protecting the underlying right, the availability of such relief can give rise to a "holdup strategy," whereby a firm threatens or uses litigation to obtain a settlement significantly in excess of any harm it suffers. Such strategies, as the Article explains, arise in a variety of technology law contexts, including patent law, digital copyright cases, and spectrum regulation. Depending on the particulars of the context, either courts or agencies should superintend the relevant liability regime and, in some cases, the administrative challenges may undermine the case for a liability rule at all. Unfortunately, legal scholars have generally focused on the substantive debate as to the proper scope of property rights - often arguing for an all or nothing solution - at the expense of evaluating the institutional considerations as to whether and when courts or agencies can superintend a liability regime in lieu of a property right.

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Goldwasser, the Telecom Act, and Reflections on Antitrust Remedies

Author: Phil Weiser
Date Published: 2007

Antitrust courts have long struggled to identify tractable principles to guide the implementation of access remedies. This Article evaluates the proper course of action related to antitrust oversight in the wake of the Telecommunications Act of 1996, explaining that antitrust law can and should evaluate the impact of purportedly anticompetitive conduct. In so doing, however, it should be mindful of the institutional limitations of antitrust courts in superintending access remedies. In particular, antitrust courts that find a violation should rely on regulatory agencies to manage conduct remedies which, while necessary to address competitive concerns, are beyond the competence of antitrust courts to implement.

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2006

Telecommunications Law and Policy

Author: Phil Weiser
Date Published: Fall 2006

Telecommunications Law and Policy is a textbook that introduces the various regulatory regimes that today govern the provision of broadcast radio, broadcast television, cable television, wireline telephone, broadband Internet, and virtually every other major telecommunications service.

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The Future of Video: New Approaches to Communications Regulation

Author: Phil Weiser
Date Published: Summer 2006

Video's role as the next step in the evolution of the Internet is little debated. Video delivered over the Internet (IPTV), the rapid increase in broadband delivery into the home, and the exploding popularity of video sites such as YouTube have signaled a shift in consumer behavior. Google's recent acquisition of YouTube for $1.65 billion only underscores the medium's growing importance to companies across the communications sector. Attempting to plan for video's next incarnation, however, dredges up a number of issues boiling beneath the surface of current discussions on the Internet. What structural and economic regulation is appropriate in a broadband, IPTV reality? What consumer protections are warranted and who should enforce them? How do we understand and grapple with difficult intellectual property issues inherent in the new media?

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Clearing the Air: Convergence and the Safety Enterprise

Author: Phil Weiser
Date Published: Spring 2006

The crisis in emergency response communications is a long-standing problem that has recently become impossible to ignore. The aftermath of Hurricane Katrina, including at least 1,330 deaths and $96 billion in property damage,1 was a striking reminder of what can happen when communications break down during a disaster. Even more tragic was the loss of life in the World Trade Center on September 11, 2001, caused by the lack of interoperable communications among New York City first responders. These tragedies are visible examples of problems of operability and interoperability in the "safety enterprise" sector we face every day.

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A Digital Age Communications Act Paradigm for Federal-State Relations

Authors: Kyle Dixon, Phil Weiser
Date Published: 2006

This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical appeal during the initial stages of communications reform. Even in instituting a single overarching federal framework, the recommended regulatory regime does involve state agencies in a number of important ways.

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2005

Video Franchising Fight: Swiftly Changing Market Creates Regulatory Challenges

Authors: Raymond Gifford, Phil Weiser
Date Published: December 10, 2005

This year's version of the telecom regulatory wars is the debate over local video franchising. In the 1970s when MCI entered long-distance markets, AT&T complained that it "cream-skimmed" by entering only the desirable markets. In the wake of the Telecommunications Act of 1996, incumbent Bell companies like Qwest cried foul when competitive local phone companies engaged in "cherry-picking," targeting the business market and not residential consumers.

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The Behemoth Is Dead. Long Live the Behemoth

Author: Phil Weiser
Date Published: February 27, 2005

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Commentary, The Fourth Amendment Right to Delete

Author: Paul Ohm
Date Published: 2005

For years the police have entered homes and offices, hauled away filing cabinets full of records, and searched them back at the police station for evidence. In Fourth Amendment terms, these actions are entry, seizure, and search, respectively, and usually require the police to obtain a warrant. Modern-day police can avoid some of these messy steps with the help of technology: They have tools that duplicate stored records and collect evidence of behavior, all from a distance and without the need for physical entry. These tools generate huge amounts of data that may be searched immediately or stored indefinitely for later analysis. Meanwhile, it is unclear whether the Fourth Amendment's restrictions apply to these technologies: Are the acts of duplication and collection themselves seizure? Before the data are analyzed, has a search occurred?

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The Relationship of Antitrust and Regulation in a Deregulatory Era

Author: Phil Weiser
Date Published: 2005

In Verizon v. Trinko, the Supreme Court set forth a new stance toward antitrust oversight of regulated industries. As this Article discusses, the particulars of that stance remain open for debate and are likely to generate considerable disagreement. Notably, an ambitious reading of Trinko suggests that courts should avoid evaluating antitrust claims where a regulatory agency is empowered to oversee the conduct at issue. This Article, by contrast, calls for a less ambitious application of Trinko's rule of antitrust restraint. In particular, it explains that antitrust courts should make discretionary judgments about whether the effectiveness of regulation in a given set of circumstances renders antitrust oversight unnecessary. By so doing, antitrust courts would defer to regulatory agencies only where those agencies are reasonably capable of managing the competition policy matter at issue. If antitrust courts opt for a broader rule of restraint, such a stance would only fuel an unfortunate trend of devaluing the role of antitrust oversight and overly valuing the capabilities of alternative institutional actors. Rather than adopt that stance, antitrust courts should evaluate what revisions to legal doctrine and procedural practices can best evaluate claims that antitrust courts might otherwise seek to dismiss under Trinko.

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The Ghost of Telecommunications Past

Author: Phil Weiser
Date Published: 2005

Paul Starr's The Creation of the Media presents modern policymakers with an important opportunity to consider the historical lessons of the telecommunications industry. This Book Review underscores how Starr's book richly explains some key components of U.S. information policy - such as relying on an integrated strategy of intellectual property, antitrust law, and telecommunications policy - and that some historical lessons are misplaced as to today's environment - such as a categorical skepticism of vertical integration. Moreover, Starr's account of telecommunications history explains that the U.S.'s success in promoting innovation in the information industries reflects our reluctance to manage key industry segments through government bureaucracies and our ability to develop an appropriate regulatory model for an era of monopolies. As we move into a new technological environment, however, we need to move away from the classic regulatory prescriptions of cradle-to-grave common carriage regulation and regulating what programs broadcasters must provide to their viewers. Rather, as the Book Review highlights, policymakers need to develop a next generation regulatory regime that learns the correct lessons from history and economic learning to meet the challenges of the Internet age.

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2004

Parallel-Effect Statutes and E-Mail "Warrants": Reframing the Internet Surveillance Debate

Author: Paul Ohm
Date Published: 2004

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2003

Modularity, Vertical Integration, and Open Access Policies: Towards a Convergence of Antitrust and Regulation in the Internet Age

Authors: Joseph Farrell, Phil Weiser
Date Published: Fall 2003

Antitrust law and telecommunications regulation have long adopted different stances on whether to mandate open access to information platforms. This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in evaluating this basic policy choice, suggesting how they can be integrated in an effective manner. In particular, the authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms and facilitate a true convergence between antitrust and regulatory policy.

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The Internet, Innovation, and Intellectual Property Policy

Author: Phil Weiser
Date Published: April 2, 2003

The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of "information platforms" that support the viewing of content--be they instant messaging systems, media players, or Web browsers--face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries--a debate most often played out at the conceptual extremes between the "commons" and "proprietary control" approaches to the Internet and intellectual property policy.

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2002

Law and Information Platforms

Author: Phil Weiser
Date Published: November 25, 2002

Unlike more established areas of the law, the field of telecommunications or, as more aptly termed, information law, is not easily defined. To be sure, there is an ambitious statutory code (the Communications Act of 1934, as amended, most notably by the Telecommunications Act of 19961) and an agency charged with administering it (the Federal Communications Commission). There is even a leading casebook for teaching "Telecommunications Law." But as the history of telecommunications makes clear, legal regulation of this industry defies easy categorization, as it strays across legal spheres--into antitrust, intellectual property, and First Amendment law--as well as into non-legal disciplines--into principles of engineering and economics, for example.

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2001

Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act

Author: Phil Weiser
Date Published: November 19, 2001

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism's effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts' increased reluctance to make federal common law under the Erie doctrine and their greater deference to administrative agencies under the Chevron doctrine. Professor Weiser then applies this conception of cooperative federalism to the implementation of the Telecommunications Act of 1996, the most ambitious cooperative federalism venture yet, and shows how federal courts should exercise their authority in coordination with federal and state regulators to advance the Act's goals.

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1999

Comment: On Regulating the Internet: Usenet, a Case Study

Author: Paul Ohm
Date Published: 1999

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Policing the Spectrum Commons

Authors: Dale Hatfield, Phil Weiser

One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives for parties to cheat on the rules that prevent tragedy of the commons-type results, some cheaters are likely to emerge and thereby undermine the promise of new and innovative technologies that use unlicensed spectrum.

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Toward A Next Generation Regulatory Strategy

Author: Phil Weiser

he FCC is now facing a set of issues that will help shape the future evolution of the Internet and the role of government in its development. In particular, the FCC is in the midst of designing a regulatory regime for broadband platforms. To do so, the FCC must decide both on the appropriate regulatory classification for such platforms and what legal rules (if any) should govern access to such platforms. This Article explains how the FCC, using its "ancillary jurisdiction" authority under Title I of the Communications Act, can develop a reactive regulatory regime that examines allegations of discriminatory access based on a factual record through complaint proceedings. This approach envisions that the FCC would not follow the prescriptive model of regulation (such as that provided by common carrier regulation), but instead would develop a common law, "antitrust-like" model that would focus on competition policy concerns that actually arise.

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