THE NINTH CIRCUIT’S INVASION OF THE TORT OF INVASION OF PRIVACY
Harvey L. Zuckman
Professor Zuckman’s article examines several recent Ninth Circuit Court of Appeals cases involving the tort of invasion of privacy. Zuckman begins by tracing the unique origins of this tort and the role played in its development by such legal luminaries as Louis Brandeis, Samuel Warren, and Dean Prosser. The article then discusses the right of publicity and the tort of intrusion as they have been explained in several recent cases by the Ninth Circuit. Zuckman concludes that the Ninth Circuit’s opinions in these areas are misguided and inconsistent and have left the law in this area in a state of confusion.

UTILIZING “ESSENTIALITY OF ACCESS” ANALYSES TO MITIGATE RISKY, COSTLY AND UNTIMELY GOVERNMENT INTERVENTIONS IN CONVERGING TELECOMMUNICATIONS TECHNOLOGIES AND MARKETS
Barbara A. Cherry
Ms. Cherry's article assesses the challenges faced by government policymakers in determining when and how to intervene to secure access to essential services and facilities. Cherry begins by discussing how, in the past, government intervention proceeded on an ad hoc basis. Technological change and the move toward deregulation have heightened the need for a more rationalized approach to government intervention. The article argues that an “essentiality of access” analysis–-one which maps access situations with similar characteristics to applicable historical legal principles--would be the best solution because it serves the demand for access solutions that can be applied across competing technology platforms.

A SPECTRUM REVOLUTION: DEPLOYING ULTRAWIDEBAND TECHNOLOGY ON NATIVE AMERICAN LANDS
John C. Miller & Christopher P. Guzelian
In a world where most people take access to information and communication for granted, the telecommunications needs of Native American populations are not often considered. John C. Miller and Christopher P. Guzelian’s article does just that as undertakes a through legal analysis of the legal rights of Native American tribes to dispute FCC restrictions to ultrawideband (“UWB”) technology, a new technology which operates by utilizing spectrum occupied by existing radio services. This article discusses how recent developments in the UWB field could provide Native American tribes with access to new high-speed, wireless communications services. This article, while explaining the difficulties that Native Americans face in modernizing their communication and information infrastructures also details how those difficulties are complicated by a recent Federal Communications Commission decision to limit use of UWB for outdoor communications systems. Miller and Guzelian advocate that instead of litigation, the exertion of tribal sovereignty, lobbying and other non-litigation solutions will ultimately prove most fruitful that the use of a legal process, in enabling these tribes to have access to this budding communication system that they unquestionable need. The authors also delineate an unexpected benefit of deregulating this new technology, namely that in doing so, the FCC could blaze a trial to more widespread use of UWB.

SHIFTING THE BURDEN: THE UNCONSTITUTIONALITY OF SECTION 512(H) OF THE DIGITAL MILLENNIUM COPYRIGHT ACT AND ITS IMPACT ON INTERNET SERVICE PROVIDERS
Matthew Amedeo
Today, as the internet becomes available in more rural and remote parts of the world, it can be increasingly considered a staple of modern life. Along with the many benefits that have evolved with this instant access to information, problems have also abounded in the ability of owners of copyrighted material to regulate proprietary content transferred between users. Nationwide concern has prompted Congressional enactment of several pieces of legislation designed to address these issues. Matthew Amadeo’s article explores this new arena of instantaneous communication by focusing on information sharing over the internet, through peer-to-peer (“P2P”) networks. In his article, Amadeo contends that the internet has facilitated the illegal distribution of copyrighted materials and examines the Congressional response to illegal distribution, as well as the response of a group that is increasingly concerned with P2P information sharing, The Recording Industry Association of America (“RIAA”). The article focuses on the unconstitutionality of the RIAA's interpretation of § 512(h) of Digital Millennium Copyright Act of 1998 and discusses the Fifth Amendment due process implications of this new legislation on Internet Service Providers. The author also expresses concerns with the limitations that the Digital Millennium Copyright Act places on the First Amendment rights of internet users nationwide. Amadeo ultimately advocates for an intermediary system that protects confidential business information of ISP’s and allows them to engage in free speech while still affording copyright holders the ability to profit fairly profit from their legally protected material.

THE EXPERT AGENCY AND THE PUBLIC INTEREST: WHY THE DEPARTMENT OF JUSTICE SHOULD LEAVE ONLINE OBSCENITY TO THE FCC
Robert K. Magovern
In light of the ever-growing concern of the American public with obscenity, the United States Department of Justice and Congress have attempted to assume a more high profile role in the fight to regulate and eradicate the increasing presence of obscenity on the internet. Richard Magovern’s article discusses repeated past Congressional failings at holding publishers of indecent material on the internet liable and details how the FCC is markedly better equipped to enact lawful regulations that prohibit certain forms of speech. The author argues that effective regulations of internet obscenity requires detailed knowledge of two things: 1) an understanding of how the Supreme Court has traditionally dealt with obscenity in various forms of media and 2) an in-depth understanding of the how the internet works, how it has evolved since its genesis. Only through combining knowledge of these two areas will promulgation of effective rules be accomplished. This article provides a brief explanation of the history of the internet, and discusses where it is in its ever-changing evolution process at present day. It also explains both the general treatment of obscenity regulations by the Supreme Court overtime and medium-specific obscenity regulations. Magovern’s analysis ultimately reaches the conclusion that the FCC more readily possesses the requisite knowledge and expertise in both arenas and concludes that to effectively regulate obscenity in cyberspace, effective and lasting legislation, that avoids the mistakes of the past, will come with the FCC at the helm of regulation and not the Department of Justice.

INFORMATIONAL PRIVACY V. THE COMMERCIAL SPEECH DOCTRINE: CAN THE GRAMM-LEACH-BLILEY ACT PROVIDE ADEQUATE PRIVACY PROTECTION?
Julia C. Schiller
Informational privacy, or one’s right to control communication of personally identifiable information about oneself, has been put at extreme risk by recent technological advancements. Computers allow individuals and companies to store and disseminate personal financial information more easily, and the development of the Internet allows this information to be made available on a greater scale. The Internet facilitates the targeted marketing of on-line profiling and is the main contributor to one of America’s fastest growing financial crimes, identity theft. Another threat to informational privacy arose as a result of the Gramm-Leach-Bliley Act (“GLB Act”) of 1999, which permitted banks, insurance, and securities industries to merge their customer information into a single database. Congress accompanied the GLB Act with privacy protection provisions to assuage consumer concerns. Schiller argues that these provisions are misleading as to which institutions they are directed, passive and ambiguous in establishing “opt-out” consent requirements for disclosures to affiliates and third parties, and inadequate in providing confidentiality and individual control of financial information. Schiller suggests amendments to the protection provisions, proposing an “opt-in” system and a variety of verification procedures to ensure the accuracy of financial information. Schiller rejects the claim that Congress is precluded from enacting such amendments by the commercial free speech doctrine of the First Amendment. Because commercial free speech faces certain restrictions when regulation is reasonable and materially advances a substantial government interest, Schiller asserts that Congress has the power and the obligation to further protect informational privacy.

INTERNET CASINO GAMBLING: THE NIGHTMARE OF LAWMAKING, JURISDICTION, ENFORCEMENT & THE DANGERS OF PROHIBITION
Thomas James Friedrich
This article examines historical events and legislation to address the legal implications involved in the recent explosion of Internet gambling. Although Internet gambling is not free speech in and of itself, Friedrich argues that rights guaranteed under the First Amendment as well as the Fourth Amendment extend to the Internet. Consequently, Congressional legislation designed to regulate Internet content must be carefully tailored as to the specific type of content being restricted so as to not violate these constitutional guarantees. Friedrich explains that attempts at definitive Congressional legislation on Internet gambling are have suffered from “overbreadth and unenforceability,” reflected in legislation like the Combating Illegal Gambling Reform and Modernization Act, which adheres to tradition by reserving the treatment of Internet gaming to the states. Although Internet gambling is a practice which certainly affects interstate commerce, Friedrich asserts that the federal government is likely less equipped to regulate and enforce the activity than the states. Despite the problems of regulation and general social unacceptability of gambling, Friedrich argues that a total prohibition on Internet gambling is an “unworkable” solution because it will facilitate the type of legislative backlash that was seen in Prohibition and the War on Drugs. Friedrich proposes a remedy of federal legalization in the form of a federal commission designed to oversee Internet gambling within the bounds of the commerce power. This is complemented by Congressional authorization of strict regulation by state police powers. This is accomplished by first requiring online casinos to register all of its players in order to reduce abuse by minors and money laundering. Second, Friedrich proposes to decrease the risk of fraud in Internet gambling by establishing a network of communication between casinos, thus reducing the threat of “problem gamblers” and outstanding debt.

“PRIVILEGED COMMUNICATIONS?” THE BRIGHT LINE RULE IN THE USE OF COCKPIT VOICE RECORDER TAPES
Van Stewart
This article explores the legal implications of Cockpit Voice Recorders (“CVRs,” “black boxes”) and Flight Data Recorders (“FDRs”) as tools used to investigate air disasters in post-9/11 aviation. Required for all commercial planes starting in 1964, CVRs allowed investigators to draw conclusions about the causes of air disasters from facts (e.g., the pilot’s verbal account of the problem or sounds of a malfunctioning engine) rather than speculation. By law, accessing the actual recordings of the black boxes is used solely for accident investigation purposes, and is prohibited in legal proceedings and use by the media.. The transcripts of the recordings, however, made their way into the public and news media courtesy of the Freedom of Information Act. Then, in a 1990 amendment to the Independent Safety Board Act, Congress granted litigants access to the taped recordings if it is determined that a fair judicial proceeding cannot be had without them. Arguing against this provision, Stewart asserts that a pilot’s right to privacy in the cockpit, his workplace, outweighs the attorney’s need for the actual recordings. Stewart states that the material contained in the publicly released transcripts of the CVRs is sufficient to meet the need of litigants outside the “accident investigation arena.” Looking forward to proposals of cockpit video recorders under the FAA’s Enhanced Airplane Security Program, Stewart similarly advocates adherence to the original intent of the CVR statute and protection of pilot’s privacy by limiting the recordings solely to accident investigation purposes.