Current Issue

Volume 2015 - Issue 2 (Fall)


"The Evolution of Financial Instruments and the Legal Protection against Counterfeiting: A Look at Coin, Paper, and Virtual Currencies" by Ralph E. McKinney, Jr., Lawrence P. Shao, Dale H. Shao & Duane C. Rosenlieb, Jr.
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This essay discusses the requirements for the long-term acceptance of virtual currency as a financial medium of exchange by examination of fundamental criteria associated with the historical development of common tender and selected virtual currencies. The relatively recent appearance of Internet-based transactions have necessitated developing virtual forms of payment such as virtual currencies. According to the Financial Crimes Enforcement Network (“FinCEN”) of the United States Treasury, virtual currencies are subject to regulation if that virtual currency has a substitutive purpose for facilitating the exchange of goods and services.

Although governments can place stipulations on currencies, users of common tender, including virtual currencies, expect at least three basic privileges for a virtual currency to evolve from conception to realization. First, a virtual currency must be considered intangible personal property similar to trademarks, copyrights, and patents. Second, ownership disputes must be subject to a system such as a judicial proceeding or binding arbitration to resolve property as well as interest conflicts. Finally, a virtual currency must be subject to similar regulation as other financial instruments (e.g., legal tender, scrip, and credit cards) used in facilitating transactions.

One of the most common and critical aspects of safeguarding currency is protection against illegitimate representations of assets—that is, primarily against counterfeiting. We discuss the regulatory authority and/or lack of authority, of the sovereign States of the United States to regulate the counterfeiting of financial instruments used as currency, including virtual currency. Moreover, federal and foreign (non-U.S.) currencies are explicitly examined, but some virtual currencies are not regulated or authorized specifically by any government. Can a currency without formal codification from a government be regulated by a sovereign State? As financial transactions have shifted historically from various governments’ legal tender to combinations of government and private issuances and from the hard currency of coins and paper to electronic transactions, many States’ counterfeiting statutes are unclear or fail to consider that technological changes can impact legal and common tender. The rise of transactions facilitated by virtual currencies and regulations protecting states from virtual counterfeiting is examined and discussed.

"Repacking and Inventorying Federal Spectrum: The Role of Federal Employees" by Sarah Oh
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Federal radio engineers have the expertise and job description to perform federal spectrum repacking. However, these federal employees have high costs of coordination due to administrative constraints. The inter-agency structure of federal spectrum management creates fragmentation on spectrum decisions. Radio engineers are disaggregated from their counterparts in other agencies and removed from policy decisions made by spectrum policy committees. Several proposals for institutions to manage federal spectrum have been advanced this year to bring federal spectrum into a modern organizational service. Institutional reform also requires a closer analysis of the role of federal employees who perform repacking and inventory of federal spectrum. Incorporating best practices from federal property management to federal radio spectrum reallocation may better align incentives of federal employees, particularly engineers who manage custom and localized federal radio equipment.

“Cybersecurity: What about U.S. Policy?” by Lawrence J. Trautman
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During December 2014, just hours before the holiday recess, the U.S. Congress passed five major legislative proposals designed to enhance U.S. cybersecurity. Following signature by the President, these became the first cybersecurity laws to be enacted in over a decade, since passage of the Federal Information Security Management Act of 2002. My goal is to explore the unusually complex subject of cybersecurity policy in a highly readable manner. An analogy with the recent deadly and global Ebola epidemic is used to illustrate policy challenges, and hopefully will assist in transforming the technological language of cybersecurity into a more easily understandable story. Much like Ebola, cyberthreat has the ability to bring our cities to a standstill. Many cybersecurity policy implications are strikingly similar to those occasioned by Ebola.

First, a brief recital of the grave danger and potential consequences of cyberattack is provided. Second, I comment on the policy impact resulting from rapid changes in technological complexity and the relative lack of computer familiarity on the part of many senior business and governmental leaders. Third, the characteristics of selected competing cybersecurity constituency groups are discussed: consumers; investors; law enforcement; business; federal, state and local government; and national security interests. By exploring the perceived needs and sometimes conflicting actions of these various constituencies, I hope to make a worthwhile contribution to the national conversation about cyber policy and make meaningful progress toward dealing with the new pandemic of technological virus. Next, is an examination of recent policy development milestones achieved during the past decade or so, including passage of several major legislative proposals designed to enhance U.S. cybersecurity during the waning hours of 2014: The National Cybersecurity Protection Act of 2014; The Federal Information Security Modernization Act of 2014; The Cybersecurity Workforce Assessment Act; The Homeland Security Workforce Assessment Act; and The Cybersecurity Enhancement Act of 2014. Finally, given the critical need for an immediate and effective coordinated approach to cybersecurity, a few thoughts about crafting policy goals and strategies are offered. Hopefully this essay will assist in the conversation being had today by policy makers on this important topic.

"Riley v. California: A Pyrrhic Victory for Privacy?" by Adam Lamparello
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"A Highway in the Sky: A Look at Land Use Issues That Will Arise with the Integration of Drone Technology" by Michelle Bolos
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"Hacking the Current System: Congress' Attempt to Pass Data Security and Breach Notification Legislation" by Brett V. Newman
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"When Robots Attack: How Should the Law Handle Self-Driving Cars That Cause Damages" by Jeffrey R. Zohn
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