June 2013

[Commentary] By the time summations concluded in the government's e-book antitrust suit against Apple, Apple had amply vindicated CEO Tim Cook's out-of-court characterization of the case as "bizarre." Yet it still might not win.

On the contrary, if federal judges read the antitrust laws mechanically, and read certain emails and testimony uncharitably, it's easy to see how they might conclude that Apple in December 2009 and January 2010 did, indeed, facilitate a price-fixing conspiracy among five of the six major publishing houses when it was arranging the launches of its iPad and iBook store. There can be little question that Apple understood that its entry into the e-book market under the terms of the "agency model" contracts it had negotiated with the publishers would push prevailing prices on most new releases from $9.99 to either $12.99 or $14.99, which is just what it did. At the same time, all the evidence presented seemed consistent with Apple's contention that it simply sized up the unusual market conditions prevailing when it arrived on the scene in late 2009 and then acted to further its own independent, paradigmatically legitimate business goals: opening a store and trying to make a profit. As a byproduct, if not a goal, Apple unquestionably enhanced competition and innovation in a sorely over-concentrated market.

Sprint Nextel shareholders voted to approve and adopt the previously announced merger agreement providing for a substantial investment by SoftBank.

Sprint shareholders overwhelmingly approved the deal, with approximately 98 percent of the votes cast at today’s special shareholders meeting voting in favor of the merger agreement, representing approximately 80 percent of Sprint’s outstanding common stock as of April 18, 2013, the record date for the special meeting. Consummation of the Sprint-SoftBank transaction remains subject to the receipt of the Federal Communications Commission approval. The FCC also has to look at Sprint’s own proposed acquisition of Clearwire — which Dish is also bidding for. The FCC declined comment on when it plans to vote on the deal. Clearwire shareholders are expected to vote on July 8. Sprint and SoftBank anticipate the merger will be consummated in early July 2013.

[Commentary] Suddenly, it feels like 2000 again. Back then, surveillance programs like Carnivore, Echelon, and Total Information Awareness helped spark a surge in electronic privacy awareness.

Now a decade later, the recent discovery of programs like PRISM, Boundless Informant, and FISA orders are catalyzing renewed concern. The programs of the past can be characterized as “proximate surveillance,” in which the government attempted to use technology to directly monitor communication themselves. The programs of this decade mark the transition to “oblique surveillance,” in which the government more often just goes to the places where information has been accumulating on its own, such as email providers, search engines, social networks, and telecoms. Both then and now, privacy advocates have typically come into conflict with a persistent tension, in which many individuals don’t understand why they should be concerned about surveillance if they have nothing to hide. It’s even less clear in the world of “oblique” surveillance, given that apologists will always frame our use of information-gathering services like a mobile phone plan or Gmail as a choice.

Privacy advocates are skeptical of proposals to restructure a National Security Agency (NSA) surveillance program so phone companies, rather than the spy agency, would retain consumers' phone records.

"The acquisition of everyone's telephone call records under Section 215 is illegal and it should be abandoned. If the government tries to require the phone companies to retain the data for five years, we would oppose that strongly because it creates huge privacy risks," said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "One of those risks is that the data, once retained for national security purposes, would almost certainly be made available for law enforcement and other purposes." Amie Stepanovich, director of the Domestic Surveillance Project at the Electronic Privacy Information Center, echoed a similar concern. She noted that phone companies do temporarily keep information on the phone numbers its customers call, the length of those calls and where those calls took place, but the concern rests with "how long the companies are keeping this information."