Download of the Week

The Download of the Week is “Internet Federalism” by Tejas N. Narechania (University of California, Berkeley – School of Law) and Erik Stallman (University of California, Berkeley – School of Law). Here is the abstract:

The internet is not a cloud. Rather, it is a series of real cables, wires, radio links, and switches connecting places that employ real people and house real computers. Each of these components of the internet’s infrastructure operates in a distinct locale and is subject to distinct market constraints.

This basic yet significant descriptive insight has important implications for regulatory cooperation and competition between state and federal authorities regarding broadband internet access. In the latest battles over network neutrality regulation, for example, state and federal regulators have found themselves at odds over the scopes of their respective authority. The Federal Communications Commission has suggested that the internet’s “inherently interstate” nature, together with its own disavowal of regulatory power over broadband carriage, preempts state regulatory power. But some states insist that they retain the authority to regulate various aspects of these services, local and beyond.

So where on the internet does state power end and federal power begin? The long history of competition and cooperation between state and federal communications regulators suggests a tradition—incomplete and imperfect in places—of subsidiarity, locating decisional power at the most immediately salient local jurisdiction. Such an approach can—and should—inform the allocation of shared regulatory authority over the internet’s infrastructure and services, too. The internet is not one grand, monolithic, interstate thing, immune from state and local regulation under the dormant commerce clause, doctrines of federal preemption, or related limits on state power. Rather, whether states may (and should) regulate depends on technical specifics and regulatory effects. Hence, where local concerns predominate, local authorities may be our most competent regulators; and where federal concerns predominate, federal authorities should take the regulatory reins. Such a pragmatic approach yields important lessons for regulatory power online. Some aspects of internet service require a local touch. Others do not. But identifying an appropriate site for resolving such policy matters demands a close understanding of the technical, market, and regulatory structure of the communications networks that form the modern internet.

Cofone on Privacy Class Actions

Ignacio Cofone (McGill University Faculty of Law) has posted “Privacy Class Actions” on SSRN. Here is the abstract:

Courts are increasingly being called upon to adjudicate privacy class actions arising from everything from a corporation’s business practices to external events such as hacking. But courts struggle with how to constitute and assess privacy injuries. This is problematic because courts must assess privacy harm throughout different stages in litigation – to determine standing, class certification, and compensation. It is problematic because the uncertainty with how to evaluate and identify privacy harm has produced a Circuit split on the requisite privacy injury sufficient for standing. Lastly, it is problematic because, as a consequence, despite the importance of these class actions for people’s access to justice and ensuring that companies comply with privacy law, their success as a vehicle to these means is hindered.

Privacy class actions are undertheorized. This Article provides a framework for distinguishing which class actions involve harm to people’s privacy interests and which do not, providing courts with the needed framework and proposing how to approach the Circuit split.

This framework’s approach to determining privacy harm has significant theoretical and practical benefits. From a theoretical standpoint, it sheds light on the relationship between privacy loss and actionable privacy harm. By proposing how privacy claims can be evaluated on a continuum, this Article’s proposal is well-suited for evaluating grey areas and, specifically, for class actions. From a practical standpoint, it has consequences for corporate liability and consumer redress for privacy breaches. Most importantly, it gives courts a tool to identify and navigate privacy harm, which continues to be an impediment to privacy class actions and which courts have manifested they are in need of.