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Freedom of Speech and Press: Exceptions to the First Amendment [September 8, 2014]
"The First Amendment to the United States Constitution provides that 'Congress shall make no law ... abridging the freedom of speech, or of the press.' This language restricts government's ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place. This report provides an overview of the major exceptions to the First Amendment--of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, or speech that constitutes what has become widely known as 'fighting words.' The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees' speech. […] This report will outline many of the standards the government must meet when attempting to regulate speech in a constitutional manner. The report will be updated periodically to reflect new developments in the case law."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2014-02-08
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Telemarketing Regulation: National and State Do Not Call Registries [August 14, 2014]
"Today, it is axiomatic that telemarketers in the United States generally are not permitted to place outgoing telemarketing calls to phone numbers on the national do not call list, unless an exception applies. This was not always the case, however. The National Do Not Call Registry was implemented by Congress and by the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) in response to widespread frustration on the part of citizens with what were perceived to be abusive telemarketing practices. Particularly irritating and invasive were the numerous calls to residences on the part of telemarketers during dinner hours. In an attempt to address these complaints, Congress granted the FTC and the FCC the authority to regulate telemarketing practices. From these initial grants of regulatory authority grew the National Do Not Call Registry. The development and implementation of the national do not call list was not straightforward. No single law creates the list. Instead, it developed from a combination of statutes and regulations over time, as Congress and the federal agencies tasked with the responsibility of regulating telemarketing developed strategies to better alleviate perceived consumer harm. This report will outline the laws underpinning the national do not call list; describe the regulations implementing the list; answer some of the most frequently asked questions related to the list; and discuss the possible penalties for violating the rules. The report will also briefly discuss some of the ways the various states have implemented their own do not call lists."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2014-08-14
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Net Neutrality: The FCC's Authority to Regulate Broadband Internet Traffic Management [March 26, 2014]
"A major debate over the government's role with respect to the regulation of the Internet is currently occurring. Legally, one of the biggest questions is to what extent the Federal Communications Commission (FCC or Commission) currently has the authority to regulate the ways in which Internet service providers (ISPs) manage Internet traffic over their networks. On December 21, 2010, the Commission adopted new open Internet rules in its Open Internet Order. The rules required broadband Internet service providers to disclose their network traffic management policies and prohibited them from blocking any lawful content from travelling over their networks. Furthermore, the rules prohibited fixed broadband Internet service providers from unreasonably discriminating against any particular content. The rules were challenged in federal court by a number of different industry participants. Verizon, in its suit, argued that, policy considerations aside, the FCC had not asserted adequate statutory authority to issue the rules. In January of 2014, the Court of Appeals for the District of Columbia issued a decision finding that the FCC did have the authority under Section 706 of the Telecommunications Act of 1996 to issue the rules. However, the court vacated both the antiblocking and anti-discrimination rules, nonetheless. The court found that, although the FCC had reasonably interpreted the authority granted to it by Section 706, the agency could not promulgate rules under that section that otherwise violated the Communications Act of 1934. Because the anti-blocking and anti-discrimination rules were prohibited by another portion of the Communications Act, the court struck down the rules."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2014-03-26
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Conflict Minerals and Resource Extraction: Dodd-Frank, SEC Regulations, and Legal Challenges [October 15, 2014]
"Two sections of the Dodd-Frank Wall Street Reform and Protection Act (Dodd-Frank) require that the Securities and Exchange Commission (SEC or Commission) issue regulations to make public the involvement of U.S. companies in conflict minerals and in resource extraction payments. Supporters of the Dodd-Frank conflict minerals statute and the SEC implementing rule believe that such disclosures could have an impact on the amount of violence involved with the mining of conflict minerals. Opponents of the statute and rule argue that they require disclosures that are arbitrary and capricious and that some of the required disclosures violate the First Amendment guarantee of freedom of speech. Supporters of the resource extraction statute and the SEC implementing rule believe that they are needed to achieve the goal of the transparency of payments made by resource extraction issuers to governments in order to foster reform and anticorruption and to improve the tax collection process. Opponents believe that they are arbitrary and capricious and violate the First Amendment. Legal challenges to the statutes and regulations have occurred, based primarily on administrative law and First Amendment grounds. Section 1502 requires that the SEC issue rules mandating the disclosure by publicly traded companies of the origins of listed conflict minerals."
Library of Congress. Congressional Research Service
Seitzinger, Michael V.; Ruane, Kathleen Ann
2014-10-15
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Privacy Law and Online Advertising: Legal Analysis of Data Gathering by Online Advertisers Such as Double Click and NebuAd [January 16, 2009]
"To produce revenue, websites have placed advertisements on their sites. Advertisers will pay a premium for greater assurance that the advertisement they are purchasing will be seen by users that are most likely to be interested in the product or service offered. As a result, technology has been developed which enables online advertisements to be targeted directly at individual users based on their web surfing activity. This practice is widely known as 'behavioral' or 'e-havioral' advertising. This individual behavioral targeting has raised a number of privacy concerns. For instance, questions have been asked whether personally identifiable information is being collected; how the information collected is being protected; and whether current laws are being violated if data are being collected without the consent of the parties involved. It is often unclear whether current laws, such as the Electronic Communications Privacy Act and the Communications Act, apply to online advertising providers that are collecting data through click tracking, capturing search terms, and other methods. However, it is likely that in many cases these laws could be held to apply to such activities and that these methods of data collection would be forbidden unless consent is obtained from one of the parties to the communication. This report will examine the application of these statutes to online behavioral advertising in more detail."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2009-01-16
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Gasoline Price Increases: Federal and State Authority to Limit 'Price Gouging' [August 23, 2011]
"Fluctuations in gasoline prices in recent years have renewed focus on the role of the government in discouraging 'price gouging,' a term commonly used to refer to sellers inflating prices to 'unfair' levels in order to take advantage of certain circumstances causing a decrease in supply, including emergencies. There have been legislative efforts to create a federal law addressing gasoline price gouging, including bills that would bar certain commercial practices as well as legislation that mandated the study of pricing of gasoline in the wake of Hurricane Katrina. While the federal government has not enacted legislation aimed specifically at addressing price gouging for gasoline, a majority of states have enacted statutes to curtail price gouging for certain critical goods and services, including fuel, during emergencies. Some of these statutes attempt to address price gouging by barring pricing during emergencies that is considered to be 'unconscionable' or 'excessive' or otherwise is in violation of a subjective standard. Other statutes place a hard cap on prices during periods of emergency based on percentage increases from prices charged for the good or service in question prior to the emergency. […] Although there is no federal law aimed specifically at price gouging, federal antitrust laws do forbid various types of anticompetitive business practices. For example, Section 1 of the Sherman Act prohibits unreasonable restraints of trade. It is possible that if a group of gasoline retailers or other retailers collaborated to set prices unreasonably high during an emergency, this 'price gouging' could be a violation of Section 1 of the Sherman Act. In addition, while not necessarily tied to retail price gouging, federal statutes addressing monopolies and vertical integration may play a role in evaluating retail gasoline price changes."
Library of Congress. Congressional Research Service
Vann, Adam; Ruane, Kathleen Ann
2011-08-23
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Journalists' Privilege: Overview of the Law and Legislation in Recent Congresses [January 19, 2011]
"In 'Branzburg v. Hayes', 408 U.S. 665, 679-680 (1972), the Supreme Court wrote journalists claim 'that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.' The Court held, nonetheless, that the First Amendment did not provide even a qualified privilege for journalists to refuse 'to appear and testify before state or federal grand juries.' The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of 'grand jury investigations ... instituted or conducted other than in good faith.... Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification.' Though the Supreme Court concluded that the First Amendment does not provide a journalists' privilege in grand jury proceedings, 49 states have adopted a journalists' privilege in various types of proceedings; 33 have done so by statute, and 16 by court decision. Journalists have no privilege in federal proceedings. On July 6, 2005, a federal district court in Washington, DC, found Judith Miller of the 'New York Times' in contempt of court for refusing to cooperate in a grand jury investigation relating to the leak of the identity of an undercover CIA agent. The court ordered Ms. Miller to serve time in jail. Ms. Miller spent 85 days in jail. She secured her release only after her informant, I. Lewis Libby, gave her permission to reveal his identity. Congress has considered creating a journalists' privilege for federal proceedings, and bills to adopt a journalists' privilege have been introduced in the 110th and 111th Congresses, in both the House and the Senate."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2011-01-19
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FCC's Authority to Regulate Net Neutrality After Comcast v. FCC [December 2, 2010]
"In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrent™ and, possibly, other peer-to-peer (P2P) file sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintains that its actions were reasonable network management and not in violation of the Federal Communications Commission's ('FCC' or 'Commission') policy. In response to a petition from Free Press for a declaratory ruling that Comcast's blocking of P2P applications was not 'reasonable network management,' the FCC conducted an investigation into Comcast's network management practices. The FCC determined that Comcast had violated the agency's Internet Policy Statement when it blocked certain applications on its network and that the practice at issue in this case was not 'reasonable network management.' The FCC declined to fine Comcast because its Internet Policy Statement had never previously been the basis for enforcement forfeitures. Comcast appealed this decision to the U.S. Court of Appeals for the D.C. Circuit, as did other public interest groups."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2010-12-02
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Net Neutrality: Will the FTC Have Authority Over Broadband Service Providers? [March 20, 2018]
"The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), sitting en banc, recently decided 'FTC v. AT&T Mobility,' which may affect the ability of the Federal Trade Commission (FTC) to police certain broadband Internet access service (BIAS) providers in the near future. Specifically, the court held that although common carrier services (e.g., landline and wireless telephone services) are generally exempted from FTC oversight, if an entity provides 'both' common carrier and non-common-carrier services, the FTC is not precluded from regulating that entity's non-common-carrier services."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2018-03-20
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How Broad a Shield? A Brief Overview of Section 230 of the Communications Decency Act [February 21, 2018]
"The Communications Decency Act of 1996 (CDA) added Section 230 to the Communications Act of 1934, generally protecting online service providers from legal liability stemming from content created by the users of their services, with some exceptions. (Though the provision is found in the Communications Act, many commonly refer to it as Section 230 of the CDA.) Some commentators have described Section 230 as one of the most important provisions protecting free expression on the Internet because 'interactive computer service' providers-- including entities like Facebook, Twitter, and Google that provide significant online platforms -are permitted to publish others' content without reviewing it for criminality or other potential legal issues. However, others argue that Section 230's liability protections are overbroad or unwarranted, and contend that Section 230's liability shield facilitates sex trafficking and other criminal behavior by permitting online service providers to display advertisements for illegal activity without fear of liability. In response to these concerns, some Members of Congress have introduced bills to limit the provision's scope."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2018-02-21
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Funeral Protests: Selected Federal Laws and Constitutional Issues [March 22, 2011]
"The Westboro Baptist Church (WBC or Church) has been protesting military funerals for a number of years. The Church has gained national attention as a result. Its primary message is that God hates the United States and is punishing the country for its tolerance of homosexuality. The Church chooses to protest the funerals of fallen soldiers to make the point that in their opinion soldiers are dying as part of God's retribution for this country's sins. Though it began protesting military funerals, it has since branched out to funerals of fire fighters, police officers, and other public servants. [...] Recently, the Supreme Court decided a case involving whether the Church could be held liable for intentional infliction of emotional distress and intrusion upon seclusion by the family of a soldier, Matthew Snyder, whose funeral the Church protested. The Supreme Court held that, at least in the case of Matthew Snyder's funeral, the speech of the WBC was fully protected by the First Amendment. There are two lines of cases, those analyzing the constitutionality of buffer zones and those analyzing tort liability. They present distinct, but related and significant First Amendment questions. This report will discuss the Supreme Court's recent decision in Snyder vs. Phelps, which deals with the question of the WBC's tort liability. It will then analyze the constitutional issues facing federal laws that create funeral protest buffer zones. Finally, it will discuss some legislative options for amending the federal laws restricting funeral protests, including the recently introduced H.R. 961."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2011-03-22
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Net Neutrality: Can the FCC Reclassify Broadband Internet Access Services? [December 4, 2014]
"On November 10, 2014, President Obama released a statement urging the Federal Communications Commission (FCC) to adopt rules governing the provision of broadband Internet access services, commonly called 'net neutrality' rules. In the statement, the President recommended that the FCC reclassify the statutory definition of broadband Internet access services from information services to telecommunications services. Such reclassification would grant the FCC more clear authority to impose the rules that the President has recommended. Title II of the Communications Act permits the FCC to regulate the rates of services classified as telecommunications services and to prohibit unreasonable discrimination in the provision of those services, among other things. In other words, telecommunications services may be regulated as 'common carriers,' and if broadband Internet service providers were reclassified as telecommunications services, they may be regulated as common carriers as well. However, many that recommend that the FCC reclassify broadband Internet access services, including President Obama, recommend that the FCC forbear from applying many of the provisions of Title II to broadband Internet access services, including the provision authorizing rate regulation. Instead, many reclassification advocates argue that only network neutrality rules, which would require disclosure, would prohibit blocking or throttling of legal content, and would prohibit certain kinds of content discrimination on the part of service providers, should be implemented following reclassification."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2014-12-04
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Conflict Minerals and Resource Extraction: Dodd-Frank, SEC Regulations, and Legal Challenges [April 2, 2015]
"Two sections of the Dodd-Frank Wall Street Reform and Protection Act (Dodd-Frank) require that the Securities and Exchange Commission (SEC or Commission) issue regulations to make public the involvement of U.S. companies in conflict minerals and in resource extraction payments. Supporters of the Dodd-Frank conflict minerals statute and the SEC implementing rule believe that such disclosures could have an impact on the amount of violence involved with the mining of conflict minerals. Opponents of the statute and rule argue that they require disclosures that are arbitrary and capricious and that some of the required disclosures violate the First Amendment guarantee of freedom of speech. Supporters of the resource extraction statute and the SEC implementing rule believe that they are needed to achieve the goal of the transparency of payments made by resource extraction issuers to governments in order to foster reform and anticorruption and to improve the tax collection process. Opponents believe that they are arbitrary and capricious and violate the First Amendment. Legal challenges to the statutes and regulations have occurred, based primarily on administrative law and First Amendment grounds."
Library of Congress. Congressional Research Service
Seitzinger, Michael V.; Ruane, Kathleen Ann
2015-04-02
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Net Neutrality: Selected Legal Issues Raised by the FCC's 2015 Open Internet Order [April 6, 2015]
"In February 2015, the Federal Communications Commission (FCC) adopted an order that will impose rules governing the management of Internet traffic as it passes over broadband Internet access services (BIAS), whether those services are fixed or wireless. The rules are commonly known as 'net neutrality' rules. The order was released in March 2015. According to the order, the rules ban the blocking of legal content, forbid paid prioritization of affiliated or proprietary content, and prohibit the throttling of legal content by broadband Internet access service providers (BIAS providers). The rules are subject to reasonable network management, as that term is defined by the FCC. This is not the first time the FCC has attempted to impose some version of net neutrality rules. Most recently, the FCC issued the Open Internet Order in 2010, which would have created similar rules for the provision of broadband Internet access services. However, the bulk of those rules, with the sole exception of a disclosure rule, were struck down by the D.C. Circuit Court of Appeals. Interestingly, the court found that the FCC did have broad enough authority under Section 706 of the Telecommunications Act of 1996 to impose the rules. However, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, permits only 'telecommunications services' to be regulated as common carriers. Broadband Internet access services were classified as 'information services' under the act by the FCC. Because the court found some of the rules imposed by the Open Internet Order to be common carrier regulation per se, the court found that the rules could not be applied to broadband Internet access services."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2015-04-06
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Telemarketing Regulation: National and State Do Not Call Registries [April 1, 2016]
"Today, it is axiomatic that telemarketers in the United States generally are not permitted to place outgoing telemarketing calls to phone numbers on the National Do Not Call List, unless an exception applies. This was not always the case, however. The National Do Not Call Registry was authorized by Congress and implemented by the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) in response to widespread frustration on the part of citizens with what were perceived to be abusive telemarketing practices. Particularly irritating and invasive were the numerous calls to residences on the part of telemarketers during dinner hours. In an attempt to address these complaints, Congress granted the FTC and the FCC the authority to regulate telemarketing practices. From these initial grants of regulatory authority grew the National Do Not Call Registry. The development and implementation of the National Do Not Call List was not straightforward. No single law creates the list. Instead, it developed from a combination of statutes and regulations over time, as Congress and the federal agencies tasked with the responsibility of regulating telemarketing developed strategies to better alleviate perceived consumer harm. This report will outline the laws underpinning the National Do Not Call List; describe the regulations implementing the list; answer some of the most frequently asked questions related to the list; and discuss the possible penalties for violating the rules. The report will also briefly discuss some of the ways the various states have implemented their own do not call lists."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2016-04-01
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Fairness Doctrine: History and Constitutional Issues [March 11, 2009]
"The Fairness Doctrine was a policy of the Federal Communications Commission (FCC or Commission) that required broadcast licensees to cover issues of public importance and to do so in a fair manner. Issues of public importance were not limited to political campaigns. Nuclear plant construction, workers' rights, and other issues of focus for a particular community could gain the status of an issue that broadcasters were required to cover. Therefore, the Fairness Doctrine was distinct from the so-called 'equal time' rule, which requires broadcasters to grant equal time to qualified candidates for public office, because the Fairness Doctrine applied to a much broader range of topics. In 1987, after a period of study, the FCC repealed the Fairness Doctrine. […] Any attempt to reinstate the Fairness Doctrine likely would be met with a constitutional challenge. Those opposing the doctrine would argue that it violates their First Amendment rights. In 1969, the Supreme Court upheld the constitutionality of the Fairness Doctrine, but applied a lower standard of scrutiny to the First Amendment rights of broadcasters than it applies to other media. Since that decision, the Supreme Court's reasoning for applying a lower constitutional standard to broadcasters' speech has been questioned. Furthermore, when repealing the doctrine, the FCC found that, as the law stood in 1987, the Fairness Doctrine violated the First Amendment even when applying the lower standard of scrutiny to the doctrine. No reviewing court has examined the validity of the agency's findings on the constitutional issue. Therefore, whether a newly instituted Fairness Doctrine would survive constitutional scrutiny remains an open question."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2009-03-11
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Media Consolidation: United States v. AT&T and Implications for Future Transactions [July 16, 2018]
"On June 12, 2018, the U.S. District Court for the District of Columbia (D.C. District Court) ruled that the proposed merger of AT&T, Inc. (AT&T) with Time Warner Inc. (Time Warner) could proceed without conditions, after one of the most closely watched antitrust trials in recent memory. The companies announced their intent to merge in October 2016. After examining the transaction for over a year, the Department of Justice (DOJ) challenged the proposed merger in November of 2017, arguing that consolidation of AT&T, a communications and satellite television provider, with Time Warner, a programming aggregator, would substantially lessen competition in violation of Section 7 of the Clayton Act (15 U.S.C. § 18). The court, after conducting a six-week trial examining the evidence, held that the government had not met its burden of proof under Section 7. The AT&T/Time Warner merger closed on June 14, 2018. The case drew intense interest because it represented the first time in nearly 40 years that the federal government asked a court to block a proposed transaction between companies that did not compete within the same market, i.e., a 'vertical' transaction. (Most transactions challenged under Section 7 involve parties that do compete within the same market, i.e., 'horizontal' transactions.) Antitrust experts labeled the case 'enormously significant,' because challenges to vertical transactions are so rare and thus there is little precedent as to such cases."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2018-07-16
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Media Consolidation: United States v. AT&T and Implications for Future Transactions [June 29, 2018]
"On June 12, 2018, the U.S. District Court for the District of Columbia (D.C. District Court) ruled that the proposed merger of AT&T, Inc. (AT&T) with Time Warner Inc. (Time Warner) could proceed without conditions, after one of the most closely watched antitrust trials in recent memory. The companies announced their intent to merge in October 2016. After examining the transaction for over a year, the Department of Justice (DOJ) challenged the proposed merger in November of 2017, arguing that consolidation of AT&T, a communications and satellite television provider, with Time Warner, a programming aggregator, would substantially lessen competition in violation of Section 7 of the Clayton Act (15 U.S.C. § 18). The court, after conducting a six-week trial examining the evidence, held that the government had not met its burden of proof under Section 7. The AT&T/Time Warner merger closed on June 14, 2018."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2018-06-29
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Israel and the Boycott, Divestment, and Sanctions (BDS) Movement [June 9, 2017]
"This report provides information and analysis on a boycott, divestment, and sanctions ('BDS') movement against Israel. The BDS movement is generally seen as a loose grouping of actors from various countries who advocate or engage in economic measures against Israel or Israel-related individuals or organizations, though defining precisely what may or may not constitute BDS activity is subject to debate. The report also analyzes economic measures that 'differentiate' or might be seen as differentiating between (1) Israel in general and (2) entities linked with Israeli-developed areas and settlements (whose legality is questioned under international law). Such settlements are found in the West Bank, East Jerusalem, and Golan Heights- areas that Israel has controlled and administered since the 1967 Arab-Israeli war. Debate is ongoing in the United States and elsewhere about whether economic differentiation (such as with regard to product labeling policies) between Israel proper and Israeli settlements constitutes a form of BDS. The report also discusses [1] Anti-BDS or anti-differentiation efforts to date, including U.S. legislative action and proposals at the federal and state level […] [and] [2] Legislative considerations arising from existing antiboycott law, First Amendment issues, and issues regarding congressional powers over commerce and foreign affairs. "
Library of Congress. Congressional Research Service
Zanotti, Jim; Weiss, Martin A.; Ruane, Kathleen Ann . . .
2017-06-09
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Net Neutrality: Selected Legal Issues Raised by the FCC's 2015 Open Internet Order [June 12, 2015]
"In February 2015, the Federal Communications Commission (FCC) adopted an order that will impose rules governing the management of Internet traffic as it passes over broadband Internet access services (BIAS), whether those services are fixed or wireless. The rules are commonly known as 'net neutrality' rules. The order was released in March 2015 and published in the federal register on April 13, 2015. The order took effect on June 12, 2015. According to the order, the rules ban the blocking of legal content, forbid paid prioritization of affiliated or proprietary content, and prohibit the throttling of legal content by broadband Internet access service providers (BIAS providers). The rules are subject to reasonable network management, as that term is defined by the FCC. […] This report will discuss the primary legal issues raised by the FCC's 2015 Open Internet Order: the FCC's authority to reclassify broadband Internet access services, the FCC's authority to forbear from the imposition of Title II regulations following reclassification, the FCC's authority under Section 706 of the Telecommunications Act of 1996, and whether the FCC properly complied with the Administrative Procedure Act."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2015-06-12
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Haranguing in the Court [October 6, 2015]
"The government's ability to restrict speech on public property depends on the type of forum where the speech is occurring. Public forums, spaces like public parks and sidewalks that have long been held open for speech activity, receive the highest degree of speech protection. Designated public forums, spaces that the government has affirmatively decided to open to speech activity, also receive the highest degree of protection. Limited public forums are spaces that the government has opened only for speech on particular topics, or at particular times. Speech restrictions within limited public forums are permissible so long as they are reasonable and viewpoint neutral, a less strict standard than that applied to public and designated public forums. Nonpublic forums are forums that are not held open for speech activity, though they may be open to the public for other reasons. The government has wide latitude to restrict speech in nonpublic forums in order to preserve the property for its intended purpose. Speech restrictions in nonpublic forums are permissible so long as they are reasonable and viewpoint neutral. The interior of the Supreme Court Building is a nonpublic forum, as the protesters acknowledge in their motion to dismiss. Consequently, the ban on making harangues and engaging in loud speech (which are two separate offenses) need only be reasonable and viewpoint neutral to be upheld."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2015-10-06
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Conflict Minerals and Resource Extraction: Dodd-Frank, SEC Regulations, and Legal Challenges [December 2, 2014]
"Generally defined, conflict minerals are 'minerals mined in conditions of armed conflict and human rights abuses, notably in the eastern provinces of the Democratic Republic of the Congo [DRC]. Resource extraction payments have also received global attention. The Extractive Industries Transparency Initiative, begun in 2002, is an organization made up of sponsoring countries (the United States is one), natural resource extractive companies, and other nongovernmental organizations. Their goal is the transparency of all payments made by resource extraction issuers to governments. Concerned about the armed conflicts in the DRC and about the need for transparency of resource extraction payments, Congress in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) added two sections to deal with these issues. Both of the sections require the issuing of regulations by the Securities and Exchange Commission (SEC or Commission) in order to make public the involvement of U.S. companies in conflict minerals and in resource extraction payments. Very briefly, Section 1502 mandates the SEC to issue rules requiring the disclosure by publicly traded companies of the origins of listed conflict minerals. Section 1504 mandates SEC rules requiring resource extraction issuers to disclose payments made to a foreign government or the federal government for the purpose of the commercial development of oil, natural gas, or minerals. The SEC has issued final rules, and court cases have challenged the rules on several grounds."
Library of Congress. Congressional Research Service
Seitzinger, Michael V.; Ruane, Kathleen Ann
2014-12-02
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FCC's Authority to Regulate Net Neutrality After 'Comcast v. FCC' [April 29, 2013]
"A major debate over the government's role with respect to the Internet is currently occurring. Legally, one of the major questions appears to be whether the Federal Communications Commission (FCC or Commission) currently has the authority to regulate the ways in which Internet service providers (ISPs) manage Internet traffic over their networks. The FCC adopted an Internet Policy Statement in 2005 that expressed the agency's support for a policy of nondiscrimination toward Internet traffic, subject to reasonable network management. In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrent™ and, possibly, other peer-to-peer (P2P) file sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintains that its actions were reasonable network management and not in violation of the FCC policy."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2013-04-29
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Journalists' Privilege: Overview of the Law and Legislation in the 109th and 110th Congresses [July 29, 2008]
"In 'Branzburg v. Hayes', 408 U.S. 665, 679-680 (1972), the Supreme Court wrote journalists claim 'that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.' The Court held, nonetheless, that the First Amendment did not provide even a qualified privilege for journalists to refuse 'to appear and testify before state or federal grand juries.' The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of 'grand jury investigations ... instituted or conducted other than in good faith.... Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification.' Though the Supreme Court concluded that the First Amendment does not provide a journalists' privilege in grand jury proceedings, 49 states have adopted a journalists' privilege in various types of proceedings; 33 have done so by statute, and 16 by court decision. Journalists have no privilege in federal proceedings."
Library of Congress. Congressional Research Service
Cohen, Henry, 1949-; Ruane, Kathleen Ann
2008-07-29
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Holocaust-Era Insurance Claims: Background and Proposed Legislation [July 13, 2011]
"In November 1998, U.S. insurance regulators, six European insurers, international Jewish organizations, and the State of Israel agreed to establish the International Commission on Holocaust Era Insurance Claims (ICHEIC). ICHEIC was tasked with identifying policyholders and administering payment of hundreds of thousands of Holocaust-era insurance policies alleged never to have been honored by European insurance companies. It ended its claims process in March 2007, having facilitated the payment of just over $300 million to 47,353 claimants. An additional $190 million was allocated to a 'humanitarian fund' for Holocaust survivors and Holocaust education and remembrance. Throughout its existence, ICHEIC was criticized, including by some Members of Congress, for delays in its claims process, for conducting its activities with a lack of transparency, and for allegedly honoring an inadequate number of claims. Although they acknowledge initial delays in the claims process, ICHEIC supporters--among them successive U.S. Administrations and European governments--argue that the process was fair and comprehensive, especially given the unprecedented legal and historical complexities of the task. […] This report aims to inform consideration of H.R. 890 and S. 466 and possible alternatives by providing: background on Holocaust-era compensation and restitution issues; an overview of ICHEIC, including criticism and support of its claims process and Administration policy on ICHEIC; and an overview of litigation on Holocaust-era insurance claims and the proposed legislation."
Library of Congress. Congressional Research Service
Belkin, Paul; Ruane, Kathleen Ann; Webel, Baird
2011-07-13
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Fairness Doctrine: History and Constitutional Issues [July 13, 2011]
"The Fairness Doctrine was a policy of the Federal Communications Commission (FCC or Commission) that required broadcast licensees to cover issues of public importance and to do so in a fair manner. Issues of public importance were not limited to political campaigns. Nuclear plant construction, workers' rights, and other issues of focus for a particular community could gain the status of an issue that broadcasters were required to cover. Therefore, the Fairness Doctrine was distinct from the so-called 'equal time' rule, which requires broadcasters to grant equal time to qualified candidates for public office, because the Fairness Doctrine applied to a much broader range of topics. In 1987, after a period of study, the FCC repealed the Fairness Doctrine. The FCC found that the doctrine likely violated the free speech rights of broadcasters, led to less speech about issues of public importance over broadcast airwaves, and was no longer required because of the increase in competition among mass media. The repeal of the doctrine did not end the debate among lawmakers, scholars, and others about its constitutionality and impact on the availability of diverse information to the public. […] Any attempt to reinstate the Fairness Doctrine likely would be met with a constitutional challenge. Those opposing the doctrine would argue that it violates their First Amendment rights. In 1969, the Supreme Court upheld the constitutionality of the Fairness Doctrine, but applied a lower standard of scrutiny to the First Amendment rights of broadcasters than it applies to other media. Since that decision, the Supreme Court's reasoning for applying a lower constitutional standard to broadcasters' speech has been questioned."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2011-07-13
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Selected Federal Data Security Breach Legislation [April 9, 2012]
"The protection of data, particularly data that can be used to identify individuals, has become an issue of great concern to Congress. There is no comprehensive federal law governing the protection of data held by private actors. Only those entities covered by the Gramm-Leach-Bliley Act, 15 U.S.C. §§6801-6809, (certain financial institutions) and the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. §1320d et seq., and amendments to HIPAA contained in the Health Information Technology for Economic and Clinical Health Act (HITECH Act), P.L. 111-5, (certain health care facilities) are required explicitly by federal law to report data breaches. If private companies have indicated in their privacy policies that they will notify individuals upon a suspected data breach, failure to provide such notification may be considered to be an unfair and deceptive trade practice under Section 5 of the Federal Trade Commission Act (FTC Act). However, the FTC does not explicitly require private actors in possession of data related to individuals to notify individuals or the federal government should a data breach occur. Forty-six states, the District of Columbia, Puerto Rico, and the Virgin Islands have enacted laws requiring notification upon a data security breach involving personal information. However, these laws may vary in their application. They may only apply to certain entities or to certain data. Furthermore, companies maintaining stores of personal data may find it difficult to comply with the potentially different requirements of various state laws."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2012-04-09
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FCC's Authority to Regulate Net Neutrality After Comcast v. FCC [October 27, 2011]
"A major debate over the government's role in the Internet is currently occurring. Legally, the question appears to be whether the Federal Communications Commission (FCC or Commission) currently has the authority to regulate the ways in which Internet Service Providers (ISPs) manage Internet traffic over their networks. The FCC adopted an Internet Policy Statement in 2005 that expressed the agency's support for a policy of non-discrimination toward Internet traffic, subject to reasonable network management. [...] The DC Circuit ruled on April 6, 2010, that the FCC could not base ancillary authority to regulate cable Internet services solely upon broad policy goals contained elsewhere in the Communications Act. Whatever the merits of other jurisdictional arguments the FCC may advance, the court found that the FCC did not have jurisdiction to enforce its network management principles on the basis it had advanced in that case. The court did not address the other questions posed by the case, including whether the FCC could proceed via adjudication. The court's ruling has thrown into doubt the FCC's authority to regulate Internet network management. On December 21, 2010, the Commission adopted new open Internet rules in its Open Internet Order. The Commission cited Section 706 of the Telecommunications Act of 1996 as well as authority ancillary to its statutory mandates in Titles II, III, and VI of the Communications Act of 1934. Two commissioners dissented. Commissioner McDowell published a lengthy rebuttal to the Commission's jurisdictional argument in his dissenting statement. This report will analyze both the Commission's jurisdictional arguments and Commissioner McDowell's counter-arguments. The most recent rules were published in the Federal Register on September 23, 2011. The rules have been challenged in court. The appeals by various parties have been consolidated in the D.C. Circuit."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2011-10-27
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Journalists' Privilege: Overview of the Law and Legislation in the 110th and 111th Congresses [November 10, 2009]
"Though the Supreme Court concluded that the First Amendment does not provide a journalists' privilege in grand jury proceedings, 49 states have adopted a journalists' privilege in various types of proceedings; 33 have done so by statute, and 16 by court decision. Journalists have no privilege in federal proceedings. [...] Congress has considered creating a journalists' privilege for federal proceedings, and bills to adopt a journalists' privilege have been introduced in the 110th and 111th Congresses, in both the House and the Senate. These bills generally would provide for a more narrow privilege than the privileges provided by state laws. Three bills were introduced in the 110th Congress: S. 1267, S. 2035, and H.R. 2102. On October 16, 2007, the House passed H.R. 2102. In the 111th Congress, two bills have been introduced: H.R. 985 and S. 448. H.R. 985 was passed by the House of Representatives on March 31, 2009."
Library of Congress. Congressional Research Service
Cohen, Henry, 1949-; Ruane, Kathleen Ann
2009-11-10
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Privacy Law and Online Advertising [January 20, 2010]
"To produce revenue, websites have placed advertisements on their sites. Advertisers will pay a premium for greater assurance that the advertisement they are purchasing will be seen by users that are most likely to be interested in the product or service offered. As a result, technology has been developed which enables online advertisements to be targeted directly at individual users based on their web surfing activity. This practice is widely known as 'behavioral' or 'e-havioral' advertising. This individual behavioral targeting has raised a number of privacy concerns. For instance, questions have been asked whether personally identifiable information is being collected; how the information collected is being protected; and whether current laws are being violated if data are being collected without the consent of the parties involved. It is often unclear whether current laws, such as the Electronic Communications Privacy Act and the Communications Act, apply to online advertising providers that are collecting data through click tracking, capturing search terms, and other methods. However, it is likely that in many cases these laws could be held to apply to such activities and that these methods of data collection would be forbidden unless consent is obtained from one of the parties to the communication. This report will examine the application of these statutes to online behavioral advertising in more detail."
Library of Congress. Congressional Research Service
Ruane, Kathleen Ann
2010-01-20
