Category: Law

My New Article – Media Moguls Risking It All

I have written a new article on the issues of media management and bad behavior – from harassment to lesser forms of bad behavior that causes possible injury and jeopardy to not only the victims, but also to their company’s very existence, and sometimes other collateral damage.  Naturally, I suggest that a good “morals clause” be in the contracts of all executives so the board of directors can take quick action.  I discuss recent public events and the current cases.

This article crosses the boundaries between entertainment law and labor law and, and I think you will find it an interesting read.

It is published by the Arizona State Sports and Entertainment Law Journal and here is a link to their site where you can read the entire article for free: Link to Media Moguls Risking It All

“Media Moguls Risking It All: Contract Clauses In The Entertainment Business in the Age of #MeToo,” 9 Ariz St. Sports and Ent. L.J. 1 (2019)

What happens to your internet security when your fingerprints are stolen?

There is recent news that the US government last 5.6 million fingerprints to unknown people in a cyber-attack. While it is worrisome, I don’t blame the government, it seems like it can happen to anyone.  For example, pretty much every store and business cannot keep our credit cards safe.  If we take it as a given that if something is stored on a network, eventually it will fall into the hands of people not authorized to have it, then it is OK to worry about the significant loss of data, and in this case, not credit card data, but rather fingerprint data.

We have been told that passwords are inherently unsafe because they can be hacked or stolen.  And because passwords are unsafe, we need a new “safe” method of authenticating to the network – and the “safest” way is through biometric data like fingerprints.  So this brings me to my question – at least a password can be changed at the sign of hacking.  Fingerprints cannot be changed.  What are we supposed to do when the “bad guys” get a copy of our fingerprints like has just happened for 5.6 million people?  It is something I am thinking about in the realm of public policy.  Please leave a comment if you have an idea.

The Most Interesting Thing About the Fall Elections – 2014

The buzz all around the media is of course how the Republicans won big in the Fall (2014) elections.  Political parties ebb and flow, political fortunes rise and fall.  So I don’t think that was the most interesting result of the Fall elections.  Perhaps some others might think it is the change in attitudes and laws regarding drugs?  Nope, not that either. Of course social morals change over time.  What then?  I think the most important and interesting thing that happened is that Americans learned how to control their employment contract.  They learned that it is possible to give themselves a raise.

The minimum wage used to be the sacrosanct possession of the federal government.  Sure a couple of high-cost states like New York might enact a bit of a larger minimum wage, but for the most part, the minimum wage was driven by the federal government, with the federal minimum wage hikes usually dragging up most states’ minimum wage.  But the federal government has been taking its time.  The last federal minimum wage hike was enacted in 2007 after being stagnant for ten years.  The last of the three increases enacted then went into effect in 2009, five years ago.  After much discussion about new concepts like a “living wage” in urban areas, fifteen of our fifty states approved minimum wage increases in 2014, either by ballot or by legislation, and a sixteenth had an advisory vote in favor of raising their minimum wage.  Sixteen of the fifty sates is 32% of the country taking action on the minimum wage in 2014.

So America has learned how to control its work contract.  Sure many people have put forth for a lot of years that increasing the minimum wage costs jobs, but the research and actual data has shown that modest increases in the minimum wage has no significant effect on employment.  So the “fear factor” around raising the minimum wage has been drained from the system.  And it appears as if Americans are tired of stagnant wages and are willing to take action.  It is easier to get a state to vote for a change than it is to get a national change, so economic activists are taking the state route.  And with the current gridlock in Washington, it appears to be the most effective route.

Could this movement grow? Why, of course.  Suppose a state decides to increase wages even more, is it OK? Yes.  Suppose they decide to make it more difficult to fire an employee, OK?  Yes, in many circumstances.  Suppose a state decides to limit pay to executives, is that OK too? A bit harder to do, but there might be ways to enact that too.  So the danger of stagnant wages is the vote.  Americans who think that wages have been too low for too long have acted through the political process.

I think that is the political lesson of 2014.  I don’t know whether I agree or disagree with the trend, I am just an observer; but since I think this was the most interesting political development of 2014, I look forward to seeing how this develops in the future.

 

 

Privacy and mobile facial recognition

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.

The FCC, Net Neutrality, and a lack of jurisdiction

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.

The FCC and “The Future of Media”

The FCC (www.fcc.gov) has started a proceeding examining “the future of media.” The public notice lists 42 questions covering everything from the state of journalism to traditional radio and television to the Internet.  The FCC welcomes is requesting comments and they have started a new website at http://www.fcc.gov/futureofmedia.

Proposition 8, real-time streaming, and the US Supreme Court

When I heard that the US Supreme Court had ruled against real-time streaming of the Proposition 8 trial in California, my first reaction was “what are they thinking, this is a new century, shouldn’t we finally be able to see important cases on television and shouldn’t the people have access to the courts?  But I was so wrong in this case.  After I read the actual text of the case, a person like me who backs cameras in the courtroom in most cases, thinks that the USSC made the right decision.

By the way, in case you are not following the issue: Proposition 8 is the California provision that voted to overturn same-sex marriage in California.  Certainly a lot of people on both sides of the issue are interested in it, and I presume would be interested in watching the trial proceedings.

The US Supreme court case is  Hollingsworth v. Perry, 558 U.S. _____ (2010).

“Cameras in the courtroom” has always had the attention of the public, the news media, and the academic community for years.  Wouldn’t cameras in the courtroom create a more informed and engaged public? Wouldn’t there be greater learning about the judicial process? Wouldn’t it be nice if the press and the public had more opportunities to see when the judicial system does not function optimally? Although virtually all court proceedings are open to the public who want to attend in person, it is not easy to either attend nor discuss what happened and cameras in courts make both easier.

Many states permit cameras in the courtroom and the USSC does have audiotapes of its arguments available (the famous Oyez project at Northwesten University helps make those tapes available).  But federal courts have been resistant to cameras in the courtroom for trials.

Why? Perhaps the O.J. Simpson trial.  What could have been a breakthrough for cameras in the courtroom created a lot of concern within the legal community and among the public.  Every side and position can find something to be concerned about cameras in the courtroom after that trial.

So why do I think the USSC is correct in its ruling in Hollingsworth?  The subject matter has no sway in my opinion,  I am a reasonably liberal professor-type. But my concern, and the Court’s concern, goes mainly to the process.  The 9th Circuit and its trial court attempted to change its rule basically a the last minute (in December for a January trial, although discussions of televising this trial started a couple of months earlier) and without public comment.  If there is anything that even today in 2010 that is frought with issues and deserves due consideration, it is cameras in the courtroom. Instead, in this case the 9th Circuit and its trial court tried to rush through rules without what the Court found to be enough consideration.

In particular, I can see questions of when witnesses should not be televised (rape victims/witnesses?), or when entire trials should not be televised. Also, rules need to be established in the 9th circuit on lots of operational issues like what cameras can look at (juror’s faces?) and there is a whole host of other questions.  The USSC notes that in this case same-sex couples will be testifying, and that some parties have already received what appears to be threats of violence against them.   Both types of parties, among others might not want their testimony televised.  There needs to be a full procedure for considering those issues before the court moves into the arena of cameras in the trial courtroom.  And moments before a major case does not seem to be the right time.

No doubt that the 9th Circuit has been considering cameras in the courtroom for a long time.  But the record before the USSC gave them pause that this is not the moment.  Note that the majority opinion is written “per curium” but that the dissent is signed by four justices (Breyer, Stevens, Ginsberg, and Sotomayor).  That presumably makes this a 5-4 decision.  The Supreme Court could not be more split.

The federal courts need to get moving with permitting cameras in the trial courts.  They need to adopt their rules after public comment and the judges need to get experience with interpretation of the rules and how to best respond to requests of the parties for protection.  And the court staff needs to have practice on how to handle the real-time exigencies of broadcasting.  It is hard enough to know what to do when broadcasting a live awards show, and unlike cameras in the courtroom, no one will receive the death sentence after the show is over.  The stakes are high, but our judicial system and our democracy is the best in the world.  And cameras in the courtroom have the promise to make both stronger.

Comcast v. FCC, net neutrality, and homework

In Comcast v FCC, the FCC is attempting to sanction Comcast for interfering with internet services – and interfering with internet services is against the principles of “net neutrality.”  However, Comcast is defending on what this author believes is a very effective ground – that the FCC does not have authority to regulate net neutrality.

The FCC is given its authority by the Communications Act of 1934, as amended many, may times over the years including by the Telecommunications Act of 1996.  The problem for the FCC in this case is that the Communications Act has not been amended to empower the FCC to address net neutrality.  The FCC normally needs explicit jurisdiction, granted by Congress and the President, in order to regulate communication subjects.

Of course there are some exceptions.  For example, when the subject is “reasonably ancillary” to a subject that the FCC has explicit authority over, the courts have held that regulation is OK.  Even so, the FCC can go too far in that regulation.  The reasonably ancillary doctrine was applied to cable television cases.  US v. Southwestern Cable 392 US 197 (1968).  However, the FCC went too far in its “ancillary regulation,” and the courts rejected additional regulation in FCC v. Midwest Video. The jurisdiction of the FCC over cable television was eventually cleared up in the Cable Communications Policy Act of 1984.

So which will it be in this case? The appeals court has yet to rule.  So this is an instance where FCC regulation is not certain.  In cases where the FCC overreaches, or where the FCC does not “do its homework,” the courts are not afraid to overturn the FCC’s rules.

Name calling in elections and the FCC rules

What happens when a candidate for federal office calls another candidate gay in an attack ad? (see an article on the subject here: http://www.suntimes.com/news/metro/1961750,mark-kirk-gay-attack-ad-election-122809.article) Well as far as the broadcast stations are concerned, nothing – they are required to carry the ad in accordance with federal rules and they may not censor nor change the ad.  Carriage on broadcast stations is required by the reasonable access provision of section 312 (a)(7) and the no-censor provision of section 315 of the communication act.  What if the statement is a lie?

Well there are two remedies envisioned, the first is the power of the public forum.  The aggrieved candidate can respond in the new media, by internet website, by blog, by twitter, by standing on a rock and proclaiming the statement a lie.  Those are the quickest and probably most effective ways that a corrective response can be made.

Can they sue? Yes, probably (the law of defamation has high thresholds for public figure) but the legal process is a slow one.  Compared to the speed of a campaign, the legal process will never catch up with the campaign rhetoric.  so a lawsuit is possible, but most effective for post-campaign redress.

What about the broadcast stations? Why don’t they stop the speech? Well congress has immunized the stations and their responsibility is to carry the political speech.  Censoring or changing political speech could be so dangerous that Congress has crafted rules that let the speech go forward and the consequences follow.  In times of election, the policy is to let the electorate hear everything and decide for themselves.

Political speech is the most protected speech we have. Censoring it could keep important information from the public.  Letting speech that might be a lie go forward also has its problems, but the other candidate has lots of options to correct it in the public forum.

American elections have been knock-down, drag-out affairs with name-calling since the beginning of time.   The rules regarding broadcast carriage of spots continue the tradition of open speech.  There have been many instances of this, for example in the 1992 election several candidates used the rule to compel broadcast stations to carry pictures of aborted fetuses in campaign advertising to call attention to their perspectives on abortion.

Do you think the rule needs changing? Or is the open forum on broadcast stations fine the way it is?

I have been interviewed in recent days on both WBBM radio and WLS-TV (ABC) as an expert on this issue.