As many as 600 operating power plants in the United States are between thirty and fifty years old and are up to ten times dirtier than new power plants built today. Many of the technologies that remove pollution and increase operating efficiencies have been available for decades, but power plants have been slow to adapt. The New Source Review (“NSR”) provisions of the Clean Air Act (“CAA”) lie at the heart of the continued existence of these grandfathered plants. While the main goal of Congress in promulgating the CAA was to improve air quality, it also sought to avoid imposing the heavy burden polluters would face if they were forced to immediately install new equipment. Consequently, the NSR program requires owners and operators of plants to install emission controls only when the source undergoes a “modification,” a physical change accompanied by an emissions increase. As all plants eventually updated their facilities or shut down, Congress felt confident that this regime would assure “attainment of pollution control by a fixed date.”

In August 2003, the administration adopted changes to these regulations that will affect more than 17,000 coal-fired power plants in the United States. The new rule will exempt grandfathered power plants from this core requirement of the CAA. Under the new rule, if the cost of a modification to a plant is below twenty percent of the unit’s value, the plant will be exempt from installing the requisite pollution control technology. According to administration officials, the new rule will allow plants to modernize more easily and lead to greater efficiency without increasing pollution. Mr. Jeffrey Holmstead, the administrator of the Office of Air and Radiation in the Environmental Protection Agency (“EPA”), testified to the Senate that the changes are environmentally neutral and would not adversely affect public health. Many environmentalists and state officials, however, are outraged at what they perceive to be a gutting of the CAA. Twelve states, led by New York Attorney Gen. Eliot Spitzer, are challenging the new regulations in court. On December 25, 2003, the U.S. Court of Appeals for the District of Columbia granted an emergency motion for stay that barred the new rules from taking effect pending the outcome of litigation.

This comment argues that the new rule undermines the regulatory scheme envisioned by Congress in promulgating the CAA and should be invalidated by the D.C. Circuit under the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.

Cite as 5 N.C. J.L. & Tech. 295 (2004) | Download PDF

The modern inventor is compelled to create innovative products, generate a market for those products, and protect those products with a patent. The choice to file a patent application reflects an inventor’s desire to protect her private interest in controlling a limited monopoly over the invention, subject to the statutes governing patents. Section 102 of the 1952 Patent Act attempts to balance such private interests with the goal of increasing the pool of public knowledge. Specifically, § 102 states “[a] person shall be entitled to a patent unless . . . the invention was . . . on sale in this country, more than one year prior to the date of the application for patent in the United States.” This particular provision of the Patent Act is known as the “on-sale bar.” The Supreme Court in Pfaff v. Wells Electronics, Inc. stated that the critical date for the on-sale bar is triggered when the invention is both ready for patenting and the “subject of a commercial offer for sale.” Appearing simple on its surface, § 102 can be the source of deep and complex inquiry into what actions constitute a “commercial offer for sale.” In 2001, the Court of Appeals for the Federal Circuit (“Federal Circuit”) attempted to simplify this inquiry by holding that courts should look to Article 2 of the Uniform Commercial Code (“UCC”) to determine whether a commercial offer for sale has occurred.

On May 13, 2003, the American Law Institute (“ALI”), authors of the UCC, finalized its revisions of UCC Article 2. Faced with two versions of Article 2, the Federal Circuit eventually will be forced to decide whether to rely on the new version of Article 2 or continue to use the older version of Article 2. This comment will argue that instead of relying on either version of Article 2, the Federal Circuit should look to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”)8 to determine whether a commercial offer for sale has occurred in actions under § 102(b).

Cite as 5 N.C. J.L. & Tech. 351 (2004) | Download PDF

We are in the Wild West of privacy and security today. As was the case with consumers of food and drugs one hundred years ago, today’s consumers know little about the actual practices of companies that have their personal information. There is skyrocketing identity theft, stalking made possible through the sale of personal information, and a shift in power from individuals to business and government data collectors. There also are more subtle, cultural harms. Individuals feel more vulnerable to strangers and, as a result, are less likely to engage in social behaviors like exchanging phone numbers. There is an emerging field of activism that argues direct marketing pollutes the “mental environment” and that economists need to account for distraction as a harm or cost caused by privacy-invasive advertising.

Consumer advocates have called for broad ranging privacy protections—ones that not only require accurate notice but also place a ban on certain uses of personal information. The industry, perhaps best represented at the North Carolina Journal of Law and Technology Symposium by Chris Mustain of IBM, counters these calls with the same language and arguments used to avoid accountability in the food and drug debate—that privacy law will infringe upon innovation and free enterprise rights.

Cite as 5 N.C. J.L. & Tech. 213 (2004) | Download PDF

Ah ha, hush that fuss
Everybody move to the back of the bus
Do you wanna bump slump with us
We the type of people make the club get crunk

In September 1998, the Atlanta-based musical group OutKast released a song titled Rosa Parks which contained the above lyrics in the chorus. In Parks v. LaFace Records, the Court of Appeals for the Sixth Circuit recently found itself in the precarious position of deciphering those cryptic lyrics. To accomplish this task the court actually relied on a translation of the lyrics “derived from various electronic ‘dictionaries’ of the ‘rap’ vernacular.” The chorus was translated to mean: Be quiet and stop the commotion. OutKast is back out [with new music] so all other MCs [mic checkers, rappers, Master of Ceremonies] step aside. Do you want to ride and hang out with us? OutKast is the type of group to make the clubs get hyped-up/excited.

At stake in the case was Rosa Parks’ right to protect her celebrated name and OutKast’s right to use her name as the title to its song; but in a larger sense, the expressive rights of all artists were at stake. The First Amendment of the United States Constitution8 protects this artistic expression, and the judicial system should act to enforce this right of artistic freedom. However, the outcome of this case and other recent legislation show that the judicial system is not only failing to enforce this right, but is stifling artistic expression.

Cite as 5 N.C. J.L. & Tech. 277 (2004) | Download PDF

On October 26, 2001, only six weeks after the unfathomable horror of September 11, President Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“PATRIOT Act”).2 The bill was more than 340 pages long, had significant changes in its final days, and affects more than fifteen already existing statutes.3 In response to the crisis of September 11, the legislation passed 98 to 1 in the Senate and 357 to 66 in the House of Representatives without hearings and with little debate or discussion. Yet, the debate is increasingly being heard above the din of crisis, with members of the higher education community deeply involved;4 even members of Congress have questioned their own actions voting for the Act.5 Essential to this growing debate is the frank realization that the PATRIOT Act was implemented in response to a national security crisis, rather than an unfolding legislative action. Similar responses to actual or perceived security crises resulted in The Alien and Sedition Acts of 1798, President Lincoln’s suspension of habeas corpus during the Civil War, the Espionage Act of 1917, the internment of Japanese-Americans after Pearl Harbor, and the Smith and McCarren Acts, during the McCarthy years.6 Historical perspective, however, reveals these to have been reactions, rather than responses, and none of these reactions is defensible today; most must be viewed as reprehensible and unjustified reactions to perceptions of the need for expediency in the face of perceived threats to national security.

This article first recognizes the tension between individual freedom versus the community good in surveillance activities, the unjustified reactions taken in times of security crises, and Title II of the PATRIOT Act’s creation of a new way of thinking after September 11. The article then examines the means and methods of surveillance, and the significant changes made to existing surveillance laws by Title II. The article also examines how section 215 of Title II generated a debate between librarians and the Justice Department that revealed the need for and importance of that debate in determining whether the PATRIOT Act is a reaction or a response to a perceived security crisis. The article then examines provisions outside Title II, which have a significant effect on institutions of higher education. The article concludes by accepting higher education’s duty to advance the debate between individual freedom and the community good, and also higher education’s need to respond with practical solutions.

Cite as 5 N.C. J.L. & Tech. 177 (2004) | Download PDF

Recently several states have launched investigations of certain MCI telephone call routings based on competitors’ claims that the company eliminated or reduced payments it should have made. The MCI investigations may uncover instances of unlawful practices designed to shore up revenues, reduce payments to local exchange carriers for call delivery, avoid tax liability and shift local exchange access payment burdens to other carriers. Perhaps more significantly the investigations may trigger closer scrutiny of numerous strategies and tactics used by telecommunications carriers to reduce payments they make to other carriers. Also, this scrutiny may call attention to how carriers exploit inconsistent regulatory treatment of functionally the same services. A fuzzy line separates lawful efforts to achieve least cost routing of traffic on one hand, and deliberate efforts unlawfully to reduce or avoid financial obligations by deceiving other carriers as to where a call originated on the other hand.

Regulatory arbitrage results when stakeholders, such as telecommunications service providers as MCI, exploit differences in legislative and regulatory classifications to accrue financial and competitive advantages achieved by avoiding regulatory burdens, or by foisting payment obligations onto other carriers.

This article will examine tactics designed to exploit regulatory arbitrage with an eye toward identifying areas where inconsistent regulatory treatment distorts the competitive marketplace without offsetting public interest benefits.

Cite as 5 N.C. J.L. & Tech. 227 (2004) | Download PDF

When cyber-predators are caught through online sting operations and found guilty of the underlying statutory violation, judges must look to the United States Sentencing Guidelines (“Sentencing Guidelines”) to determine what sentences offenders will serve. One of the sentencing guidelines applicable to such cases is section 2A3.2, “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts.” Section 2A3.2 is intended to apply to consensual acts between the defendant and the victim which are illegal due to the victim’s age.

Section 2A3.2 includes a provision allowing for a sentencing increase, or “enhancement,” when the offender “unduly influenced the victim.” Section 2A3.2 specifically defines “victim” to include “undercover law enforcement officer.” However, whether an online offender can “unduly influence” an undercover law enforcement officer remains unsettled. In 2002, in United States v. Root, the Court of Appeals for the Eleventh Circuit said an online offender can “unduly influence” an undercover law enforcement agent because of the specific inclusion of undercover officers in the definition of “victim.” In 2003, in United States v. Mitchell, the Court of Appeals for the Seventh Circuit said an online offender cannot “unduly influence” an undercover officer because the language of the guideline requires sexual contact to occur before it can be applied. As law enforcement agencies are increasingly engaging in online sting operations to catch cyber-predators, the ambiguity of the guideline will continue to cause judicial confusion. Section 2A3.2 itself does not answer that question. Even though one of the primary goals of the Sentencing Guidelines is to eliminate sentencing disparity, imprecise and ambiguous guidelines like section 2A3.2 allow for disparate interpretations. Section 2A3.2 does not define “undue influence.” Specifically, section 2A3.2 does not indicate whether the offender need only exert undue influence, in which case the guideline is punishing the offender based on his culpability, or if the victim must actually experience and succumb to the offender’s influence, which would mean that the guideline is punishing the offender based on actual harm caused. To resolve the ambiguity it is necessary to determine who section 2A3.2 is intended to punish—the offender with wrongful intent or the offender who actually caused harm.

This Comment explores the ambiguities of section 2A3.2 and analyzes the decisions in Root and Mitchell.

Cite as 5 N.C. J.L. & Tech. 371 (2004) | Download PDF