Washington Journal of Law, Technology & Arts

Volume 15  | Spring 2020  | Number 3

Harlem Shake Meets the Chevron Two Step: Net Neutrality Following Mozilla v. FCC

Christopher Terry & Scott Memmel
15 Wash. J.L. Tech. & Arts  160

6/18/2020

Constitutional & Regulatory

In October 2019, the D.C. Circuit handed down its much-anticipated decision in Mozilla v. FCC, relying heavily on Chevron Deference and the Supreme Court’s 2005 Brand X decision. The per curiam opinion upheld large portions of the FCC’s 2018 Restoring Internet Freedom Order, but also undermined the FCC’s preemption of state law while also remanding issues related to public safety, pole attachments, and the Lifeline Program to the agency, assuring that the legal and policy battles over net neutrality will continue. This Article traces the history of the FCC’s efforts on net neutrality as it has moved in and out of court since the FCC’s 2005 Policy Statement before exploring the decision in Mozilla. The Article then argues that the continuing uncertainty over net neutrality regulation should be resolved by Congress.

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Pseudo-Gambling and Whaling: How Loot Boxes Prey on Vulnerable Populations and How to Curtail Future Predatory Behavior

Alexander Mann
15 Wash. J.L. Tech. & Arts  200

6/18/2020

Constitutional & Regulatory

The video game industry has blossomed from a niche hobby into a mainstream cultural industry, outpacing global box office sales in annual revenue. Yet the price of a video game has barely increased since the industry’s inception, and the current standard price point of sixty dollars has survived for over a decade. Competitive market forces drive companies to invest ever more time and money into creating increasingly complex software in order to remain on the cutting edge of graphics and design, while simultaneously increasing revenue. Thus, video game developers and publishers have developed a multitude of alternative moneymaking services to provide revenue beyond the initial sale of a game. Of these, the one technique that has garnered the most attention, and the most legislative scrutiny, is the “loot box.” Through this system, players are allowed to pay a sum of real-world currency in exchange for receiving one or more random in-game items. This technique simulates gambling practices yet escapes current gambling oversight, leaving games containing this technique available to anyone. This includes vulnerable populations that do not have the capacity for rational spending, such as minors and those suffering from gambling addiction. Though loot boxes stubbornly persist in existing titles and popular franchises, market forces are slowly phasing out the practice. While current regulatory forces discuss loot boxes, other monetization methods are rising to replace them and no law currently stands in the way of their return. Efforts should be focused toward creating a video game distributor regulatory board, fostering parental education regarding electronic parental controls, and enacting long-term legislation at state and federal levels to prevent similar issues from occurring in future.

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U.S.-UK Executive Agreement: Case Study of Incidental Collection of Data Under the CLOUD Act

Eddie B. Kim
15 Wash. J.L. Tech. & Arts  247

6/18/2020

Constitutional & Regulatory

In March 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act, also known as the CLOUD Act, in order to expedite the process of cross-border data transfers for the purposes of criminal investigations. The U.S. government entered into its first Executive Agreement, the main tool to achieve the goals of the statute, with the United Kingdom in October 2019. While the CLOUD Act requires the U.S. Attorney General to consider whether the foreign government counterpart has a certain level of robust data privacy laws, the relevant laws of the United Kingdom have generally been questioned numerous times for their inadequacies in protecting privacy. Thus, the privacy of U.S. citizens may be in jeopardy under the new agreement. Although the texts of the CLOUD Act and the Executive Agreement clarify that the UK government cannot explicitly target the data of U.S. citizens, it does not guarantee that such information will not be gathered incidentally. First, the UK courts do not adhere to the equivalent level of probable cause standard that is demanded under the Fourth Amendment. Therefore, they may issue judicial orders to force the U.S.-based service providers to deliver certain data, which may include information that belongs to the U.S. citizens, to the UK government upon finding mere possibility of relevance to the investigations. Coupled with this fact is arguably less robust privacy protection in the United Kingdom, from which it is not difficult to imagine a situation where the private information of U.S. citizens is extracted while the UK government seeks data belonging to citizens of its own. This Article argues that the threat to the data privacy of U.S. citizens via incidental collection is not only possible, but probable. At the same time, this Article explores possible solutions to fill in the identified gaps in the CLOUD Act that would enhance the protection of U.S. citizens’ data privacy from incidental collection.

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