I just finished teaching my class on “Current Issues in Privacy.” Northwestern students are incredibly smart and it is always a joy to work with them. Of course one of the big issues is privacy on Facebook, but I will save that one for later. Instead, I would like to talk about a technology that one of our groups discussed in their final project – mobile face recognition. It seems there is an app for Android phones (Recognizr) that lets to snap a picture of someone and have it pair up that picture through facial recognition software with publicly available contact information. It will probably be available for iPhones soon.
So when you go to a bar, you do not have to ask the cute girl or handsome man for their contact information – just snap a picture with your smartphone and it will give their phone number, street address, email address, etc. to you. Nevermind that they did not want to give you their number. Or nevermind they thought you were a jerk and would have given you a fake number. Nevermind consent of any sort, they can just take the picture of you from a range that you never even see them doing it. It is one thing in classic privacy theory to expose yourself in public and it is another that anyone with common technology can use database aggregation (which is what these lookups are called) in new and possibly scary ways. It is one thing for the police to be able to pull you over and verify the picture on your driver’s license. It is another for anyone on the street to be able to get this type of information. So I guess we just need to get over the idea of privacy.
It has been a while since I posted, so time to catch up. One of the biggest things happeing in communications law is the recent decision of the US Court of Appeals for the DC Circuit in the case Comcast v. FCC. In this case, the court ruled that the FCC did not have jurisdiction over the Internet. While a surprise to the FCC and probably the Obama administration who tasked the FCC with Internet regulation, it is of little surprise to long-time scholars of media law.
The FCC was attempting to use its “ancillary” jurisdiction to regulated “net neutrality.” Ancillary jurisdiction has worked in the past – when cable television was a young, and at the time, inconsequential aid to a few people in rural areas who needed to receive over-the-air television. But in this case we have a mature, ubiquitous, and important media and the FCC tried to use its “ancillary” jurisdiction. The court said that the FCC exceeded its general regulatory authority when trying to apply plenary regulation to the Internet.
Congress gives authority to the FCC in the Communications Act of 1934. It is an interesting read of structural policy. For example, there is a chapter on “common carriers,” and one on “radio (and television),” and one on “cable television.” But nowhere do you find the chapter on “the Internet.” Not that the Internet needs its own chapter (but it should have one…), plenty of services are regulated under the big topics including cellphones (common carrier) and satellites (also common carrier). But even when looking for the provisions that apply to the Internet, there are few of them. So the FCC did see itself as having significant authority over the Internet, but the court saw the FCC has having what Congress has given it and not too much more.
And the importance of this case? First the FCC needs to think of another way to regulate things like net neutrality (and it is busy brainstorming right now) and second, perhaps this will encourage Congress to take up the topic of Internet regulation and jurisdiction (a new chapter in the communications act, anyone?). With clarity from Congress, the FCC could have its way with Internet regulation.