Got Your Six? Not In Trump’s America

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On July 26th, 2017, Donald Trump, acting in his capacity as Commander in Chief of the Armed Forces, announced a new policy in the current fashion for this administration, via Twitter, which would ban transgender people from serving in the military.[1] This new “Trans Ban” is a direct reversal of Obama-era policies.

On June 30th, 2016, the Obama Administration announced that they would no longer discharge a member of the service for being openly transgender.[2] Following this, the Department of Defense announced that they would be accepting openly transgender troops into the service.[3] Within a year, on August 25th, 2017, despite no knowledge on the part of the Joint Chiefs of Staff[4] and vehement opposition from members of both parties[5], Donald Trump signed an Executive Order[6] prohibiting transgender people from joining any branch of the military, and giving the Secretary of Defense, James Mattis, six months to determine how to deal with the openly transgender soldiers currently serving, and leaving their long term fate unknown. These soldiers however, are not fighting this battle alone.

The future of this attempt by the Commander in Chief to use the war powers to discriminate may hang in the balance, however, without those he intended to support him. Civil liberty watchdog groups are not the only ones denouncing the President’s ban.  Republican Senator John McCain has openly criticized the ban since the tweet guidance.[7] Senator McCain, who acts as Chair of the Senate Armed Forces Committee, stated, “Any member of the military who meets the medical and readiness standards should be allowed to serve- including those who are transgender.”[8] Senator McCain has also lent his support to a new bill to be introduced into Congress, which pushes back against the Trans Ban.[9] This new bill, created after failed attempts by senators to stop the Ban by adding an amendment to the fiscal year 2018 Defense Authorization Bill[10], would prohibit the Department of Defense from not allowing current transgender troops to reenlist and also speed up the clock for Secretary Mattis in determining the effects on military readiness that he is required to report by February of 2018.[11] If the Bill passes, Secretary Mattis would have to report the results of his review to Congress by the end of 2017.

Secretary Mattis issued a guidance memo on September 15th, 2017 which stated that the Department of Defense, together with the Joint Chiefs of Staff, are convening a panel to discuss what the guidance will mean for transgender troops already currently enlisted, who relied on the Obama-era guidance in making their decision to serve openly as transgender.[12] In the meantime, Secretary Mattis confirmed that the Obama-era policies on transgender troops still hold, and that transgender soldiers may still continue to serve and receive proper medical care.[13] Secretary Mattis has said that he and the panel will create a plan that will “promote military readiness, lethality and unit cohesion”[14], but has not said if the Department of Defense has any idea what direction they will take regarding the currently enrolled soldiers.

While members of Congress are doing their best to fight for the rights of transgender soldiers currently enlisted, civil liberty groups are fighting for that and for the future of transgender people who desire to enlist. LGBT civil rights groups sued Donald Trump over this policy, some before the guidance even made its way to the Pentagon.[15] Others, like Lambda Legal[16] and the American Civil Liberties Union[17], waited until the Executive Order had been signed to sue. These groups cited Equal Protection and Due Process violations.[18] They cite documents that were prepared at the request of the Department of Defense during the Obama era, when they were considering allowing transgender people to serve openly in the service. This study, conducted by the RAND Corporation studied the effects on military readiness of allowing transgender people to serve openly and the costs of healthcare. They determined that healthcare costs were negligible[19] and looked to international examples to study the effects on military readiness.[20]

The Netherlands led the way in allowing transgender people to openly serve in 1974, and the other countries followed suit, including the United States last year. The study began with listing the eighteen countries that allow openly transgender people into their armed forces[21], and focused on the four most developed and long-term implementations of the policy in the Australian, Canadian, Israeli and United Kingdom armed forces. The study outlined the implementation of the policies and the long-term effects on readiness. They found that in all four countries, there was no report on any readiness or military operational effectiveness.[22] In fact, some leaders reported that the “increase in diversity has led to increases in readiness and performance.”[23] Through this research, the RAND Corporation recommended several best practices for the United States implementation of the policy, including diversity training, informed leadership, providing experts to commanders and promoting an inclusive environment.[24]

With the studies commissioned by the Department of Defense refuting the things that the Commander in Chief has cited as reason why they should not allow transgender service members to enlist, the law is on the side of those fighting for equality. While courts give great deference to the military and to anything that could be seen as a threat to national security, there is no reason to find in the favor of the Trump Administration when it comes to not allowing transgender people to enlist. In the Executive Order from the Trump Administration, the only reason given for the ban is that the Obama Administration did not have “sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”[25] This could not be further from the truth.

Prior to the Obama Administration’s repeal of the Department of Defense’s policy prohibiting transgender troops, they commissioned studies to assess if a repeal of the policy would affect all the things that Trump cited in his new Executive Order. Studies by the RAND Corporation, discussed supra, and the Palm Center helped assess the implications on readiness and effectiveness, and found that it would have no real impact. The Palm Center then, along with other transgender advocates, helped the Department draft standards to assuage the concerns about the medical needs of transgender troops. Per the newly drafted policy, transgender troops would have to be “stable without clinically significant distress or impairment in social, occupational or other important areas of function for 18 months.” They also must meet all other standards required for their respective positions in the service. Transgender advocates and experts on military readiness have supported all of these provisions.

And with respect to the concern of “taxing military resources”, a recent study by the Palm Center, assessed that it would cost the military $960 million dollars to discharge transgender troops (determining the number by calculating how much it would cost to recruit and train new members for the positions they would leave vacant [$75,000 per member x 12,800 active transgender members]).[26] The RAND Corporation study, discussed supra, assessed the cost of providing medical care to transgender troops to be $2.4-$8.4 million.[27] The cost-benefit analysis does not require an economist to interpret the results. The “taxing” of “military resources” would come with discharging these troops, not providing them with adequate medical care.

Without any data to back up the President’s reasoning for the Executive Order, when challenged in a court of law, he will not meet his standard of review. Generally, in cases regarding military policy, the courts have given extreme deference in upholding the choices of the armed forces and using strict scrutiny as their standard of review. This has lead to some devastating Supreme Court decisions in the past.[28] In order for it to hold under strict scrutiny, the action must have a compelling government interest and be narrowly tailored to achieve that interest. With all available data proving that allowing transgender troops to serve openly has no impact on military readiness and costs a fraction of what it would cost to discharge existing troops, the argument that the interest the government has in excluding them becomes less than compelling. And the half-baked guidance sent to the Pentagon that Secretary Mattis has to interpret for the confused military leaders could hardly be called narrowly tailored. Civil liberty watchdogs are likely to find themselves on the right side of history and easily overturn this ban as a matter of law.

While the current administration had made their disdain for the transgender community clear through the actions taken by the president and his chosen leaders for various administrative agencies, with this Ban, they are facing challenges from within their own party, overwhelming data on the side of the transgender soldiers and compelling histories of foreign militaries showing the success of allowing transgender people to serve openly. With the actions of the devoted Congress members fighting to keep those already enlisted in the service, civil liberty groups fighting for the equality promised to them by their government, and the breadth of studies from which the data is on the side of the soldiers, Trump’s Trans Ban will hopefully soon be a thing of the past.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law. 


 

[1] Donald J. Trump, (@realDonaldTrump), Twitter (July 26, 2017, 5:55am) https://twitter.com/realDonaldTrump/status/890193981585444864

[2] Press Operations, Secretary of Defense Ash Carter Announces Policy for Transgender Service Members, U. S. Department of Defense (June 30, 2016) https://www.defense.gov/News/News-Releases/News-Release-View/Article/821675/secretary-of-defense-ash-carter-announces-policy-for-transgender-service-members/

[3] Transgender Service Member Policy Implementation Fact Sheet, Department of Defense (September 13, 2016) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[4] Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNN (July 27, 2017) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[5] Aaron Mak, Trump’s Transgender Troops Ban is Backfiring Among Congressional Republicans, Slate (July 27, 2017) http://www.slate.com/blogs/the_slatest/2017/07/27/trump_s_transgender_troops_ban_is_backfiring_among_congressional_republicans.html

[6] Donald J. Trump, Military Service For Transgender Individuals, Office of the Press Secretary (August 25, 2017) https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland

[7] Chris Johnson, McCain Co-sponsors New Bill Against Trump’s Trans Military Ban, Washington Blade (September 15, 2017) http://www.washingtonblade.com/2017/09/15/bipartisan-bill-introduced-senate-trumps-trans-military-ban/

[8] Gayle Tzemach Lemmon, On Transgender Ban, Trump, Listen to Your Generals, CNN (September 18, 2017) http://www.cnn.com/2017/09/18/opinions/on-transgender-ban-trump-should-listen-to-his-generals-lemmon/index.html

[9] Zack Ford, McCain Joins New Legislative Effort to Overturn Trump’s Trans Military Ban, Think Progress (September 18, 2017) https://thinkprogress.org/mccain-transgender-military-ban-b15affc6d31d/

[10] Chris Johnson, Senate Blocks Vote on Gillibrand Amendment to Protect Trans Troops, Washington Blade (September 14, 2017) http://www.washingtonblade.com/2017/09/14/gillibrand-amendment-protect-transgender-troops-wont-get-vote/

[11] Jennifer Bendery, John McCain Cosponsors Bill to Block Trump’s Ban on Transgender Troops, The Huffington Post (September 15, 2017) http://www.huffingtonpost.com/entry/john-mccain-transgender-troops-trump_us_59bc31bbe4b086432b072478

[12] W.J. Hennigan, Pentagon to Convene Panel on Implementing Trump’s Ban on Transgender Personnel in the U.S. Military, Los Angeles Times (August 30, 2017) http://www.latimes.com/politics/washington/la-na-essential-washington-updates-pentagon-to-convene-panel-on-1504105334-htmlstory.html

[13] Jeremy B. White, Trump’s Transgender Ban Halted by Defense Secretary General Mattis, Independent (August 30, 2017)  http://www.independent.co.uk/news/world/americas/us-politics/trump-transgender-ban-general-mattis-frozen-defence-secretary-a7919331.html

[14] Richard Lardner & Lolita C. Baldor, Mattis: Transgender Troops Can Continue to Serve, Associated Press (September 16, 2017) http://www.military.com/daily-news/2017/09/16/mattis-transgender-troops-can-continue-to-serve.html

[15] Mark Joseph Stern, Why the First Lawsuit Against Trump’s Trans Ban is so Ingenious, Slate (August 9, 2017) http://www.slate.com/blogs/outward/2017/08/09/nclr_and_glad_file_lawsuit_against_trump_s_transgender_troops_ban.html

[16] Lambda Legal and Outserve-SLDN Sue President Trump to Reverse Transgender Military Service Ban, Lambda Legal (August 28, 2017) https://www.lambdalegal.org/blog/20170828_lambda-legal-outserve-sldn-sue-trump-over-trans-military-ban

[17] ACLU Files Lawsuit Challenging Trump’s Transgender Service Member Ban, American Civil Liberties Union (August 28, 2017) https://www.aclu.org/news/aclu-files-lawsuit-challenging-trumps-transgender-service-member-ban

[18] Karnoski et al. v. Trump, Lambda Legal, Complaint at 23 https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/karnoski_us_20170828_complaint.pdf

[19] The costs of providing healthcare to transgender troops would cost $5.6 million annually, only 22 cents per member per month

[20] Agnes Gereben et al., Accessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation (June 2016) https://www.rand.org/pubs/research_reports/RR1530.html

[21] Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, United Kingdom

[22] Gereben at 60

[23] Id.

[24] Gereben at 61

[25] Supra at 6

[26] Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (August 2017) http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf

[27] Gereben at 12

[28] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944)

 

Planes, Trains . . . and Drones?

Unmanned aircraft systems (“UAS”), more widely known as drones, have been a hot discussion topic in recent years. Last spring, Penn State hosted a program called “World on Trial” which examined the legality of the use of UAS by the U.S. Government to target suspected terrorists. Critics have argued the military’s use of drones violates international humanitarian law, human rights law, and domestic U.S. law.

Given technological advances and decreasing costs, many companies are now seeking commercial applications of UAS. Corporations, such as Amazon, view the technology as an innovative customer delivery service, or as an opportunity to increase their profits or market share. Real estate firms are using drones to more efficiently survey property. An article in The Atlantic proclaims that “developing countries are skipping over roads and going straight to drones for providing healthcare,” as companies deliver medications and aid to rural clinics in Rwanda. [1]  Even Disney, which has achieved FAA-approved no-fly zones over its American theme parks, wants to fly drones.[2]

More specifically, the Washington Post discussed the potential benefits UAS may bring to rail freight carriers by allowing for the remote inspection of railroad infrastructure.[3] In 2015, the FAA granted BNSF Railway permission to use drones to inspect parts of its 32,500 miles of track. According to the Association of American Railroads, Union Pacific has also secured FAA approval for the use of drones.[4] Using drones equipped with high-definition cameras, safety inspectors may examine rail lines where dangerous weather conditions would otherwise keep on-foot personnel away.

In Europe, PKP Cargo, a Polish freight carrier, uses drones to patrol its railways and protect its cargo.[5] The company believes that drones have been responsible for a 44 percent reduction in thefts on the rail network since the program began in 2015.[6]

In the U.S., the Federal Aviation Administration has acknowledged railroads’ safety concerns in its rulemaking process. In its December 16, 2015 interim final rule requiring the registration and marking requirements for small unmanned aircraft, the FAA noted Union Pacific Railroad’s support for “other reasonable measures to encourage accountability and responsibility in small UAS operations including restrictions on any unauthorized commercial or recreational operations over certain safety-sensitive locations, such as railroad facilities.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78594, 78734 (Dec. 16, 2015) (to be codified at 14 CFR 47).

Domestic drone regulation emerged after Congress passed the FAA Modernization and Reform Act of 2012, directing the U.S Department of Transportation and the FAA to integrate UAS into the domestic airspace. In its proposed rule, the FAA imposed some of the following operational requirements for small UAS:

  • to be between 0.55 lbs and 55 lbs
  • daylight-only operation
  • maximum altitude of 500 feet
  • maximum airspeed of 100 mph
  • visual line-of-sight requirement
  • minimum weather visibility of 3 miles from control station
  • aircraft marking and registration requirements.

Most recently, on February 24, 2016, the FAA established an aviation rulemaking committee to develop operating standards for micro UAS, defined as UAS weighing no more than 4.4 pounds and “constructed of frangible materials that break, distort or yield on impact.” Based on the Committee’s findings, the FAA will propose rules for these UAS so that they may be operated safely over people while minimizing potential hazards. The committee will send a report to the FAA Administrator on April 1, 2016. Stay tuned for the Committee’s recommendations: this is a rapidly evolving area of the law, as the FAA attempts to balance innovation and economic interests with the safety of people and property.

 

 Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Olga Khazan. The Atlantic “A Drone to Save the World”. Apr. 4, 2015 http://www.theatlantic.com/technology/archive/2016/04/a-drone-to-save-the-world/476592/.

[2]Matt McFarland; “Disney Loved Its No-Fly-Zone Until It Wanted to Fly Its Own Drones” The Washington Post; Jan. 22, 2016. https://www.washingtonpost.com/news/innovations/wp/2016/01/22/disney-loved-its-no-fly-zone-until-it-wanted-to-fly-its-own-drones

[3] Brian Fung. The Washington Post. The future of train safety lies in drones. May 13, 2015. https://www.washingtonpost.com/news/the-switch/wp/2015/05/13/how-drones-could-make-train-travel-safer.

[4]Association of American Railroads. 2016 State of the Industry Reports, “Aerial Drones Provide Rail Safety from the Sky.

[5] Global Rail News. “Security drones to be used by Polish rail freight operator. Sept. 2, 2015. http://www.globalrailnews.com/2015/09/02/security-drones-to-be-used-by-polish-rail-freight-operator.

[6] Id.

Piercing the Veil: An Examination of the Constitutionality of France’s Burqa Ban

The terrorist attacks in Paris on November 13, 2015 shocked the world and once again sparked debate about the place of religion in modern society. This debate intensified as the Islamic State of Iraq and Syria, or ISIS, claimed responsibility for the slaughter.[1] While both the United States and France have been the targets of orchestrated attacks from extremist fringes, France addresses religion, especially Islam, differently than the United States.

Indeed, the French Constitution establishes that it is a secular state, providing: “France shall be an indivisible, secular, democratic and social Republic.”[2] The American approach, of course, is the First Amendment, which employs language that protects the presence of religion in private life, but does not endorse a religion for the state.[3]

To say that France prides itself on its secularism would be an understatement.[4] For many Americans, this is a puzzling concept to grasp. The United States Congress has even taken affirmative steps to maintain religion’s place in America, including the Religious Freedom Restoration Act.[5]

Despite the fact that both countries attempt to keep religion from mixing with governance to varying degrees, it is plainly evident that France takes its secularism further. Of primary note, in France, it is illegal to wear a burqa or niqab – the religious face coverings worn by Muslim women – in a public place.[6] Although the law prohibits the use of other face-covering garments such as balaclavas and hoods,[7] Muslim women are arguably the ones most affected by the law. This law has been at the center of a fervent debate, and has been scrutinized in several high courts. Still, despite the opposition, the prohibition stands, at least under French and European Human Rights law.[8] The Conseil Constitutionnel, the highest court in France that examines constitutional issues, reasoned that the law stuck a “reasonable balance” between liberty and public order.[9] The European Court of Human Rights similarly found in favor of the French law, opining that the notion of “living together” was a “legitimate aim” of French lawmakers.[10]

With even a rudimentary understanding of the place of religion in the United States, it seems clear that a law similar to the French ban of religious garb such as burqas and niqabs would not survive in American courts. But why is France’s approach so different from that of the United States? For one, it is important to remember that France and the United States differ in heritage. Even after this consideration, however, even bigger questions remain. These questions focus on the future of France. Should France begin to distance itself from its steadfast dedication to secularism? Would an atmosphere of greater tolerance of Muslims mitigate the extremist threat against France? If France were willing to take steps to reduce the religious and secular tension within its borders, what would those steps be? The jury is out and speculation is welcome. However, it is clear that France’s controversial ban on religious garb withstands constitutional assail – at least for now.

 

Nick Schwartz is a 3L and the Managing Editor of Student Work for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Vivienne Walt, ISIS Claims Responsibility for Paris Attacks as Arrests Are Made, TIME (Nov. 15, 2015, 3:09 PM), http://time.com/4112884/paris-attacks-isis-isil-france-francois-hollande/.

[2] 1958 CONST. I. (Fr.) (emphasis added).

[3] U.S. CONST. amend. I.

[4] A common term, la laïcité refers to the state secularism in France. Secularism is so central to French life that the government has even dedicated a day to the concept. Steven Erlanger & Kimiko De Freytas-Tamura, Old Tradition of Secularism Clashes with France’s New Reality, N.Y. TIMES, (Feb. 5, 2015), http://www.nytimes.com/2015/02/06/world/old-tradition-of-secularism-clashes-with-frances-new-reality.html?_r=0.

[5] See generally The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb4 (1993).

[6] Criminal penalties include a fine of 150 Euros or community service in lieu of a fine. 2 Arrested as France’s Ban on Burqas, Niqabs, Takes Effect, CNN (Apr. 12, 2011, 9:37 AM), http://www.cnn.com/2011/WORLD/europe/04/11/france.burqa.ban/.

[7] Kim Willsher, France’s Burqa Ban Upheld by Human Rights Court, THE GUARDIAN (July 1, 2014), http://www.theguardian.com/world/2014/jul/01/france-burqa-ban-upheld-human-rights-court.

[8] Id.; John Lichfield, France’s Highest Legal Authority Removes Last Obstacle to Ban on Burka, INDEPENDENT (Oct. 7, 2010), http://www.independent.co.uk/news/world/europe/frances-highest-legal-authority-removes-last-obstacle-to-ban-on-burka-2101002.html.

[9] Lichfield, supra note 8.

[10] Willsher, supra note 7.

“Yes? Do You Have Full Capacity and Freedom To Say So?”

Rape is an especially horrid and heinous crime and something must be done to curtail the number of rapes occurring throughout the globe. The UN estimates that, globally, “one in five women will be a victim of a rape or an attempted rape in their lifetime.” Specifically, in the United Kingdom, the most recent data on sexual assaults showed that 15,670 women reported being the victim of a rape, and that of the 2,910 cases that got to court, only 1,070 of those accused were convicted. While the problem has no easy fix, the United Kingdom has taken an interesting approach in an attempt to make the prosecution of alleged date rape suspects easier.

The Director of Public Prosecutions, Alison Saunders, has stated that it is time for law enforcement to move beyond the concept of “no means no” for situations where a woman may be unable to consent to sex. Ms. Saunders goes further, opining that a greater onus must be placed on the suspected attacker, who under her new guidance must be able to demonstrate how the accuser consented “with full capacity and freedom to do so.” A focus of the new guidance is to curtail sexual assaults arising from attacks where the complainant is intoxicated from drugs or alcohol. The end goal of the new guidance is to create an atmosphere where more rapists face punishment for their actions, creating a deterrent against future crimes.

While this new guidance from Ms. Saunders is undoubtedly made with the best intentions, it forces the accused to prove his or her own innocence. In other words, the new guidance forces the accused into a situation where he or she is presumed guilty until proven innocent. One could argue that the guidance creates a dangerous precedent, flying in the face of the long-standing presumption of innocence legal tradition. In the U.K., the presumption of innocence traces its roots back to the Magna Carta. The presumption of innocence stipulates that the accuser must prove that the accused committed the crime, rather than the accused being forced to prove his or her own innocence. In this sense, the guidance threatens to establish a dangerous precedent by discounting the presumption of innocence tradition.

In addition to the legal implications of the new guidance, it has faced criticism for criminalizing innocent men and infantilizing women. Situations may arise where the accused was also not in a state to remember the events of the night before, and, what happens then? The accused is seemingly facing sure conviction under the new guidelines. The new guidance would likely place more guilty rapists in prison, but how many questionably-guilty accused will have to bear the cross for this uptick in convictions? Only the future implementation of the guidance will be able to give us a definitive answer.

The global rape epidemic is real and something must be done to lower the number of crimes committed as well as lower the number of unsolved crimes. Is the new guidance in the U.K. the answer to the problem? Only time and implementation will tell, but for the time being, it threatens to set a dangerous precedent, a precedent that has the potential to make a mockery of one of the world’s longest standing legal traditions.

Ryan Mentzer is a 3L and a Student Work Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

 

 

European Parliament’s Move to End Unjustified Geo-Blocking Leaves Questions Unanswered

Geo-blocking consists of blocking a person’s online access to goods, services or audiovisual content on the basis of territorial or geographical boundaries. The extent to which such actions are permissible in the EU remains an unresolved question. What exactly constitutes unjustified geo-blocking in Europe has been a mystery and topic for debate following the announcement of the Digital Single Market initiatives by the European Commission in May of 2015. However, a resolution passed last month by the European Parliament asserts that “geo-blocking consumers’ online access to goods and services on the basis of their IP address, postal address or the country of issue of credit cards is unjustified and must stop.” The resolution represents an important first step in the prevention of unjustified geo-blocking in the EU. However, it also leaves open some important questions that need to be answered.

Exposure to geo-blocking most often arises when a person attempts to view a video from another geographic region only to be greeted with a message stating that the desired content is unavailable due to copyright restrictions. However, while the most widespread example, the issue runs far deeper than simple access to online copyright material. European consumers are often unwillingly redirected from foreign retail websites to domestic ones when purchasing goods, online retailers from different member states can charge greater fees and costs to consumers across national boundaries, and those shoppers are regularly denied shipment cross-border. As a result, geo-blocking has caused a fragmentation in Europe’s digital economy which has made innovation and competitiveness suffer.

In a press conference last year, Vice Commissioner Andrus Ansip stated that “[t]here are two logics. The logic of geo-blocking and the logic of internal market. We have to make our choice. Those two, they cannot coexist.” According to Ansip, ending unjustified geo-blocking represents a move toward greater online access to goods and services, increased innovation, and greater competition in the EU. However, before these goals can be attained, uncertainties must be resolved. Resolution will require the consultation of member states, different governing agencies of the EU, and the general public, each with the opportunity to complicate the issue further.

One uncertainty is whether the Parliament’s definition of ‘unjustified’ is exhaustive or can be expanded to include other areas not specifically mentioned. For example, the Parliament limited its definition to consumers’ “access to online goods and services” which begs the question of whether audiovisual content and copyrighted material should be considered goods in a traditional sense. Further, the limitation to only online goods and services raises questions about whether geo-blocking in other, unforeseen, mediums might be permissible.

Another area left unresolved by Parliament’s resolution is whether ‘justified’ geo-blocking may exist. Copyright laws in the European Union are harmonized by the Copyright Directive. Article 4(1) of the Directive grants authors and copyright holders the “exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise.” From this, copyright holders derive complete latitude to determine the means by which their material is disseminated in Europe. Generally, copyright holders have chosen to award copyrights on a country-by-country basis. However, should such action be regarded as unjustified geo-blocking, the extent to which copyright holders may exert control is an important question, not just for copyright holders, but for consumers as well. So, whether forcing copyright holders to permit access to their material across national boundaries is impermissible, per the Directive’s mandate, or whether such regulations could be regarded as justified is unclear and unaddressed by the Parliament’s resolution.

In short, these are only two examples of questions facing upcoming geo-blocking regulations in Europe and whether sufficient answers will be provided, and who will provide them, has yet to emerge. It remains to be seen how the issue of unjustified geo-blocking will evolve as it moves through the EU’s various legislative branches and later to the member states. But, regardless of the outcome, ending unjustified geo-blocking must remain a high priority if Europe is to remain competitive with other growing and developed markets (lest it miss out on new forms of innovation as it has in the past). Moreover, as long as the internet and e-commerce continue to be a primary means for consumers’ to access goods, services and audiovisual content, a focus on geo-blocking will remain necessary within the EU.

Jeremiah Johnston is a 3L and an Articles Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.