Spring 1997 Free Speech, Telecommunications, and Cyberspace Exam

YALE LAW SCHOOL

Spring Term 1997 Examination

Free Speech, Telecommunications, and Cyberspace

May 13th, 1997

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of two essay questions. Each has equal weight in determining your grade. Your answers to the two questions combined should total no more than 6,000 words.

2. Please read each question carefully and pay attention to what you are being asked to do.

3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

6. This exam is open book.

7. Good luck.

Question One
(One Half)

In response to criticisms of the Telecommunications Act of 1996, Congress passed the Telecommunications Reform Act of 1997. The legislative history reveals that the Act was

designed to remedy the sluggish pace of television and cable industry self-rating, assuage concerns over the constitutionality of attempts to protect our children from computer pornography, give the television and computer industries appropriate incentives to protect the interests of parents and children, and foster the public interest in democratic values.

The Act is divided into three parts.

 
Part I of the Act defines “non-rated programming” as “video programming, whether transmitted through broadcast television or cable television, that has not been rated so as to be read by a V-Chip device installed in a television set in accordance with 47 U.S.C. §§ 303(w) and (x) [Krattenmaker 1996 Supplement, pp. A-44-45].” Part I of the Act provides in relevant part:

  Section 1. Safe Harbor rules for unrated video programming. As of January 1, 2001, all non-rated video programming must be shown between the hours of 10:00pm and 6:00am local time.

  Section 2. Exceptions. The requirements of Section 1 shall not apply to:

  (a) “On the spot” news broadcasts, interviews, and coverage of political events;

  (b) live coverage of bona fide sporting events; and

  (c) video programming created before January 1, 1997 that has previously been transmitted on cable or broadcast television and that has not been declared indecent by the Federal Communications Commission, provided that nothing in this subsection shall be understood or interpreted to prevent a later determination of indecency by the Commission.

  Section 3. Severability of Exceptions. If any of the exceptions listed in Section 2 are declared unconstitutional, the rest shall remain in force.

  Section 4. Extension of safe harbor rule to cable broadcasting. If both Sections 1 and 2 are held unconstitutional, the Federal Communications Commission is instructed to promulgate regulations prohibiting the broadcast of indecent programming on any cable channel between the hours of 6:00am and 10:00pm local time.

  In the legislative history, Congress specifically noted that “The Act is intended to supplement rather than to repeal Section 16(a) of the Public Telecommunications Act of 1992 and accompanying FCC regulations which currently prohibit indecent programming on broadcast television between 6:00am and 10:00pm local time.”

 
Part II of the Act amends section 621(a)(4) of the Federal Communications Act [47 U.S.C. § 541(a)(4), p. 613 in the Krattenmaker casebook] by adding a new subsection 4(C):

  (4) In awarding a [cable] franchise, the franchising authority–
  …..
  (C) may require the cable operator to provide

  (i) up to 104 hours a year of free air time a year to qualified political candidates as defined by relevant Federal Communications Commission regulations relating to the broadcast media (or as defined by such regulations as the Commission may in the future specify with respect to cable television); and

  (ii) up to 52 hours a year of children’s programming as defined by relevant regulations of the Federal Communications Commission relating to the broadcast media ( or as defined by such regulations as the Commission may in the future specify with respect to cable television), and in addition to any children’s programming transmitted by broadcast stations carried by the cable operator.

 
Part III of the Act amends the Computer Decency Act by replacing section 223(d)(5)(A) [1996 Supplement, p. A-41] with a new version:

  (5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person–

  (A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve

  (i) any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or

  (ii) rating such communications by any method that can be read by commercially available blocking software, whether or not such software is actually used by others; or

  (iii) in the case of real-time communications, including, but not limited to Internet Relay Chat (“IRC”) communications, providing evidence of good faith belief that any person communicated with was at least 18 years of age. Such evidence may include but is not limited to logs of conversations in which the age of the party communicated with is requested of and stated by that party.

Discuss the constitutional issues raised by the 1997 Act. Is the Act good public policy?

Question Two
(One Half)

  Repeatedly in this course we have noted how social control and protection of interests in cyberspace can be achieved either through the use of legally enforceable rules, technical solutions, or social norms. We have also noted that these devices often respond to each other. They may support each other, work around each other, or make each other practically irrelevant. They may lead to “end-runs” or “arms-races.” The actual results in any case seem to depend on the state of technological advance, the costs of implementation, and the ingenuity of the participants.

  (1) Do these features of cyberspace (which are present in various degrees in other areas of telecommunications law) suggest the appropriate role of legal regulation? Conversely, do they suggest situations where legal regulation is either inappropriate, futile or irrelevant? Is legal regulation (as opposed to technical solutions) more appropriate in some areas or under some conditions than others?

  (2) Does the actual content of legal regulation of cyberspace make any practical difference as long as technical workarounds or technical solutions are available or will be available in the long run?

  (3) To what extent can we or should we rely on technical innovation to resolve problems of social order and protection of individual interests in cyberspace that would otherwise be handled by law? Conversely, to what extent is law necessary to foster or shape the appropriate development of technical innovation? Should law inhibit technical innovation (for example in the case of cryptography or copyright protection) if that innovation threatens to make law irrelevant?

  In defending your position, please be sure to offer concrete examples derived from the course materials involving freedom of expression, privacy and intellectual property, or any other examples you think may be helpful.

END OF EXAMINATION