2016 National Lawyers Convention
Justice Scalia first entered public service in 1971, when he was appointed by President Richard Nixon to serve as the General Counsel for the Office of Telecommunications Policy (“OTP") in the White House. From that day in 1971 through his dissent in the Brand X case regarding broadband classification, Justice Scalia brought a deep understanding of technology policy to his career on the Supreme Court. And of course, Justice Scalia was never one to mince words. “It would be gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction," he observed in AT&T Corp. v. Iowa Util. Bd. The Telecommunications & Electronic Media Practice Group has brought together a panel of experts to discuss Justice Scalia's legacy on telecommunications and media issues and discuss current litigation through the lens of his jurisprudence.
This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.
Telecommunications & Electronic Media: Justice Scalia's Telecommunications Legacy
12:30 p.m. – 2:45 p.m.
- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, Director, Classical Liberal Institute, New York University School of Law
- Mr. Henry Goldberg, Goldberg, Godles, Wiener and Wright LLP
- Mr. Richard E. Wiley, Chairman Emeritus, Wiley Rein LLP
- Moderator: Hon. Don Willett, Texas Supreme Court
The Mayflower Hotel Telecommunications & Electronic Media Practice Group Podcast
On October 27th, 2016, on a 3-2 party line vote, the Federal Communications Commission adopted controversial new privacy and data security rules for broadband ISPs. The FCC determined such rules were necessary because its Open Internet Order reclassified broadband providers as Title II common carriers. Prior to this reclassification, broadband ISPs operated under the generally applicable privacy and data security framework set forth by the Federal Trade Commission. However, the FCC’s new rules differ from the FTC’s framework in significant ways. Did the FCC need to adopt these new rules to protect consumers, and if so, why? Are there good reasons for these rules to differ from the FTC’s approach, which governs the rest of the Internet? What will be the practical effect of these new rules on companies, competition, and consumers? What might we see from the courts and Congress on this issue in the future? Our panelists discussed these questions and more in a lively Teleforum.
Intellectual Property Practice Group Podcast
- Dallas Harris, Policy Fellow, Public Knowledge,
- Michelle Rosenthal, Senior Corporate Counsel, T-Mobile
- Moderator: Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
After years of litigation, the bitterly fought and highly publicized smartphone patent war between two of the biggest players in the industry, Apple and Samsung, finally reached the U.S. Supreme Court. While Apple has already won the patent infringement case, the Supreme Court addressed the complicated question of how to determine damages based on a design patent in a product with thousands of other patents covering it as well. Is the statutory language clear and controlling? Are profits from the entire value of the phone the right measure? Or something less? Do design patents even have any economic value at all in a technically complex product? Is the design of a smartphone more like the design of an entire car, or just a cup holder? Our speakers will discuss the oral argument, their views on the merits of the case, as well as the important policy questions related to the economic value of design patents.
Litigation and Criminal Law Practice Group Podcast
- Ms. Rachel W. Apter, Senior Associate, Orrick
- Prof. Mark D. Janis, Robert A Lucas Chair of Law; Director, Center for Intellectual Property Research, Maurer School of Law, Indiana University, Election Lawyer Center
The case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corporation stems from Microsoft's refusal to comply with a search warrant, which would have required Microsoft to hand over the contents of e-mails stored on a server in Ireland, but accessible from the company's U.S. headquarters. The U.S. government had applied for the warrant under Electronic Communications Privacy Act (ECPA). Reversing a lower court decision in favor of the government, the Second Circuit ruled that ECPA warrants did not have extraterritorial effect without express Congressional authorization.
Were the Second Circuit and Microsoft correct? Or was the government, which had contended that the data would be seized in the U.S rather than where it was stored, and therefore the warrant would not be exercised extraterritorially? Is the case a win for the protection of privacy? Will it help protect the relationships and agreements of U.S. entities with foreign nations? Will it be a huge burden to force the government to use the mutual legal assistance process when a provider opts to store the data at issue outside the U.S.?
Telecommunications & Electronic Media Practice Group Podcast
- Jeffrey M. Harris, Partner, Bancroft PLLC
- Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee
Cisco and other industry leaders estimate that the Internet of Things (the “IoT”) has the potential to inject trillions of dollars of value over the next decade into both the public and private sectors. It holds tremendous promise to transform and improve our lives, generating unprecedented opportunities in the way we govern and are governed, the way we do business, and the way we manage our daily activities. We stand at the cusp of an era in which everything from cars to cows can be given an Internet address and connected to the IoT network.
This rapid expansion of new technologies and capabilities brings new technical, legal, and policy challenges to the forefront. The IoT has undoubtedly caught the attention of federal policy makers, as demonstrated by the National Telecommunications and Information Administration’s (“NTIA”) recent request for comments. There are many potential touchpoints in the IoT ecosystem for regulators and policymakers, from addressing spectrum requirements to ensuring the security of systems to establishing data protection frameworks. Unfortunately, the risk of overregulating or promulgating inconsistent regulations runs high.
Our experts discussed the current and future regulatory landscape of the IoT. Is the NTIA’s proceeding a harbinger for more regulation in this nascent space? What is the correct framework to ensure the successful deployment of the IoT? Is there any role for government? What policy decisions could make or break the evolution of the IoT?
- Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
- Jamie Susskind, Legislative Counsel, Senator Deb Fischer
- Moderator: Kelly A. Donohue, Partner, Wilkinson Barker Knauer LLP