The Catholic University of America

9.2 Article Abstracts

THE E.U.-U.S. PRIVACY SAFE HARBOR: SMOOTH SAILING OR TROUBLED WATERS?
James M. Assey, Jr. & Demetrios A. Eleftheriou
In 1995, the European Union enacted legislation to protect the collection and use of private personal information of its citizens. The wide-reaching legislation required compliance from all fifteen members of the European Union and barred the transfer of personal information to any non-EU country that did not provide adequate protections. This enactment created concern in the U.S. because the country had adopted a free market-based approach which relied on industry norms and codes of conduct to protect personal privacy. In contrast, the European Union believed that the right to privacy of personal information is a fundamental right. Due to the gap in approaches many noncompliant organizations in the United States worried that the legislation would create a "data fence" between the EU and the United States. In response, the EU and United States have created a "Safe Harbor" as an alternative means to provide adequate privacy protection. This article reviews the conflicting policies, examines the Safe Harbor provisions and suggests strategies for organizations in the United States seeking to take part in the Safe Harbor program. The authors conclude that compliance with Safe Harbor will help U.S. organizations reap substantial benefits overseas and allow smooth entry into the global marketplace.

LARRY FLYNT UNCENSORED: A DIALOUGE WITH THE MOST CONTROVERSIAL FIGURE IN FIRST AMENDMENT JURISPRUDENCE
Clay Calvert & Robert Richards
The authors interview controversial publisher Larry C. Flynt. Mr. Flynt, the self-proclaimed most misunderstood man in America, is a lightning rod for controversy, primarily for his pornographic magazines such as Hustler, Barely Legal and Chic. He has been called a "sleaze merchant" by Rev. Jerry Falwell; has sent free monthly subscriptions to Hustler to the president, vice president, and members of Congress; and was arrested for wearing an American flag as a diaper in Federal District Court. Despite his penchant for what may be called misplaced enthusiasm, Mr. Flynt is a tireless advocate for First Amendment rights. During the interview, the authors discuss several topics with Mr. Flynt including the legacy of Hustler Magazine, Inc. v. Falwell, the meaning of the First Amendment and obscenity laws in the United States. The authors conclude the article with a commentary on Mr. Flynt's knowledge of the First Amendment and his willingness to fund First Amendment fights.

THE INTERNET, INFORMATION AND THE CULTURE OF REGULATORY CHANGE: A MODERN RENAISSANCE
Christopher Paul Boam
In 2000, approximately 1/3 of U.S. households were regular Internet users and there are nearly 305 million users worldwide. The Internet has revolutionized the way people communicate, shop, and entertain themselves. This expansive environment has created unique problems which traditional legal notions struggle to handle. In order to address these problems there have been calls for the regulation on many levels. Mr. Boam discusses the need for regulation of the Internet and addresses regulation of Internet content and issues of jurisdiction. The author details federal efforts to self-regulate privacy and contrasts it with the more aggressive approach taken by the EU. The author also reviews content issues on the Internet. Then Mr. Boam addresses the difficult question of jurisdiction posed by the Internet. The author examines jurisdiction in the United States and courts recent application of the sliding scale of minimum contacts. The author concludes the article with a suggestion that regulation should be centralized and that policy-making at a national level should pursue a goal to match international standard setting.

VIRTUAL CHILD PORNOGRAPHY AS A NEW CATEGORY OF UNPROTECTED SPEECH
Kelly Guglielmi
Technology has given pedophiles a new instrument to exploit children. Virtual child pornography uses computer generated images to portray children engaging in sexually explicit conduct. Although virtual child pornography doesn?t directly abuse children through its production, it nonetheless indirectly harms them by whetting a pedophiles appetite for children or as a tool to entice reluctant children. In her article, Ms. Guglielmi attempts to determine whether virtual child pornography should be protected under the First Amendment. The author first chronicles the line of Supreme Court cases which have dealt with pornography and obscenity. The author then details Congressional findings regarding virtual child pornography; illustrates the difficulty of applying the Supreme Court?s present definition to virtual pornography; assesses the value of virtual child pornography as an addition to free expression of ideas and examines the governmental interests in prohibiting child pornography. Finally, the author concludes that virtual child pornography is indirectly harmful to children and should be categorized as unprotected speech outside the First Amendment.

DIRECTLY COMPETING POLICIES: THE GROWTH OF INTERNET TELEPHONY AND THE FUTURE OF THE UNIVSERAL SERVICE FUND
Elizabeth M. Donahue
Analysts predict that by the year 2003, approximately 300 million people will subscribe to Internet telephony. Internet telephony employs packet-switched networks to send voice over the Internet. Voice over Internet protocol or VoIP is more efficient and cost-effective than traditional circuit networks and threatens to make those networks obsolete. The shift from traditional circuit based networks may threaten the Universal Service Fund, a $2.25 billion fund that supports rural areas and low-income families with phone service and libraries, schools and health care facilities with Internet access. The Universal Service Fund relies on mandatory fees from traditional telecommunications carriers to fund its operations. Ms. Donahue explores the issues created by the advancement of Internet telephony technology and whether to regulate VoIP to secure future support for the USF. The author reviews the technology and history of Internet telephony; addresses federal regulation under the 1996 Telecommunications Act; examines the public policy reasons for Internet telephony regulation; and discusses the FCC's and Congress' response to pressure to regulate Internet telephony. The author concludes that Internet Telephony will eventually be treated as their telecommunications carrier counterparts. The author notes that Congress will take steps to save the USF which may include mandatory contributions from VOIP or through more conventional methods of taxation.

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