December 2013

A Powerful Rebuke of Mass Surveillance

[Commentary] For the first time since the revelation of the National Security Agency’s vast dragnet of all Americans’ telephone records, a federal court has ruled that such surveillance is “significantly likely” to be unconstitutional. The ruling by United States District Judge Richard Leon, of the Federal District Court of the District of Columbia, who was nominated to the bench by President George W. Bush on Sept. 10, 2001, was remarkable for many reasons, but mainly because there were real people sitting in open court challenging the government’s lawyers over the program’s constitutionality. Judge Leon recognized the government’s compelling interest in preventing terrorism, but he pointed out that it “does not cite a single instance” in which the data collection “actually stopped an imminent attack.” Though the ruling is limited, it is an enormous symbolic victory for opponents of the bulk-collection program, and a reminder of the importance of the adversarial process. For seven years, these constitutional issues have been adjudicated under “a cloak of secrecy,” as Judge Leon put it. Now, that cloak has finally been lifted in a true court of law.

NSA issue is costing US tech companies billions, and a fix is needed

[Commentary] When Edward Snowden's revelations of National Security Agency spying shocked the world, we were immediately struck by the huge risk to Silicon Valley industry if people no longer trusted the security of American technology. Six months later, the extent of the problem is being quantified: The Information Technology & Innovation Foundation estimates the hit to U.S. cloud computing providers at $35 billion over the next three years. Forrester analyst James Staten calculates tech losses at $180 billion by 2016. The United States, let alone the Valley, cannot let this happen. That means you, President Obama. And you, Sen. Dianne Feinstein. Both are standing firm on the NSA's right to break into anything anywhere under the umbrella of fighting terrorism.

Disarming Surveillance

The panel President Barack Obama appointed to review the National Security Agency's methods and the balance between security and privacy is advising the government to seriously degrade U.S. counterterror defenses and shut down several valuable surveillance assets in a dangerous world.

Bulk metadata collection. One of the worst proposals would effectively cripple the NSA's ability to collect, store and analyze telephony records, or the time, duration and originating and terminating numbers for phone calls.
Foreign-to-foreign intercepts. The panel attempts to quell the European uproar over purely foreign surveillance by the US by suggesting some kind of agreed-upon code of conduct among allied intelligence agencies.
A more adversarial FISC process. The FISC judges are not now operating as a judiciary but instead fill a quasi-legal management role over NSA. This dilutes accountability for the political branches, but the Obama panel wants to go further and appoint a public advocate whose job is to argue against the NSA as in a public lawsuit.

DOJ defends NSA phone records program after judge's ruling

The Department of Justice defended the National Security Agency's massive phone records collection program after a US District Court judge ruled that the program is likely to violate the Constitution.

Fifteen judges in the US Foreign Intelligence Surveillance Court have approved the program on 35 separate occasions. Leon's ruling, if it stands, may set up a Supreme Court case to arbitrate between Leon's decision and the FISA court, said Ross Schulman, public policy and regulatory counsel at the Computer and Communications Industry Association, a tech trade group that's been critical of the NSA program. "It is encouraging to see the judiciary taking up the important questions of metadata analysis and realizing the great insights about one's life that can be gleaned from such large sets of information," Schulman said. "While this kind of large-scale data crunching can lead to great advances in medicine, transportation, and even simply movie rentals, it raises serious concerns when governments do it to pick out the relationships between its citizens."

Tech Firms Push to Control Web's Pipes

Technology giants like Google and Facebook are expanding efforts to control more of the world's Internet backbone, raising tensions with telecom companies over who runs the Web.

In the past year, these companies that supply much of the world's online content have ramped up their investment in Internet infrastructure. The moves include bringing online new submarine and underground cables they have funded, striking long-term agreements to lease so-called dark fiber, and building their own networking hardware. In the process, they are beginning to rival some of the telecom companies that count them as clients. Google has spent years piecing together a network of private fiber-optic cables and now controls more than 100,000 miles of routes around the world, said one person familiar with its assets. That is bigger than the size of the continental US network run by Sprint, which covers less than 40,000 miles. Executives at the tech companies say they are aiming to reduce costs, improve the performance of their Internet services, and guarantee they have enough capacity to support the growing traffic in online video, photos, games and other services generated by their businesses. The development is troubling for many telecom companies which say they are reluctant to relinquish control of those lines to their biggest customers. On one hand, the projects are bringing a fresh source of investment to an industry dogged for more than a decade by falling prices and excess capacity. But the industry is already grappling with the concern that it will be reduced to "dumb pipes"—simple conduits for valuable traffic. The current trend, they fear, could downgrade companies even further to mere builders of those pipes.

FCC Withdraws Proposal to Relax Media-Ownership Rules

The Federal Communications Commission said it has withdrawn a proposal to relax the nation's long-standing ban on owning multiple media outlets in the same market.

More than a year ago, then-FCC Chairman Julius Genachowski circulated a draft item that would have eliminated the ban on owning a radio station and newspaper in the same market. The proposal would have also paved the way for smaller TV stations to own newspapers, a change pushed by the struggling newspaper industry. Now under the leadership of Chairman Tom Wheeler, the commission said it has taken the old item off the table while it reassesses the issue. By law, the FCC must review its media ownership rules every four years. Because Chairman Genachowski deferred action on the 2010 review, the commission is on the verge of missing the deadline before the process restarts next year. While there is no statutory penalty for missing the report, a commission official said the FCC expects "to move expeditiously to take additional steps with regard to our broadcast ownership rules and recognize our statutory obligations." That suggests another order is coming next year, but it is unclear whether it would again try to relax cross-ownership rules.

US cable musters forces to meet upheaval

For years, cable operators have been at the heart of how television is financed, distributed and viewed in the US. But with new competitors rising and rapid technology changes upending the business, the industry is entering a period of upheaval and possible consolidation.

Speculation is rife about consolidation that involves some combination of Comcast, Time Warner Cable, Charter or Cox -- the four biggest cable companies in the US by subscribers. The rationale for consolidation is clear. Geographically divided, no one cable operator has national dominance. This has kept cable operators from competing with one another in the past but they are now fending off new rivals. One issue is cord cutting, where people cancel pay-television subscriptions and turn to cheaper online streaming alternatives such as Netflix and Hulu that can appear -- just like traditional programming -- on Internet-connected televisions. Even those who are not cutting the cord are choosing TV services provided by satellite or telecoms operators instead.

Sprint/T-Mobile: Three Isn't a Crowd

It isn't often companies have reason to cheer for a competitor's deal. But if Sprint moves forward with a bid for T-Mobile US, as it is considering, AT&T and Verizon Wireless might not necessarily object to having a bigger rival to deal with. But that, in turn, might put the kibosh on any deal happening at all.

The past year has seen a raft of consolidation at the lower end of the wireless market, including Sprint's purchase of Clearwire, the acquisition of MetroPCS by T-Mobile and AT&T's deal to buy Leap Wireless. But unlike those deals, combining Sprint and T-Mobile, the No. 3 and No. 4 U.S. carriers by subscribers, respectively, would eliminate a national provider, reducing the choice for most U.S. consumers from four to three. A deal would be a boon for the two carriers, offering greater scale, significant spectrum holdings and one fewer competitor. But it would also benefit Verizon Wireless and AT&T. Eliminating a competitor would mean less pressure from an upstart willing to undercut prices as T-Mobile has done.

Carriers must get tough on smartphone theft

[Commentary] San Francisco's district attorney worries about you. He wants to protect you from thieves knocking you down on the sidewalk to steal your mobile phone. It's now the biggest and fastest growing urban crime, and it's dangerous. Is the phone industry worried about you? Not so much. D.A. George Gascón and colleagues don't want to let phone companies get away with their cavalier attitude about your safety for the sake of profit. Bravo.

Copyright Office Calls for Congress to Reconsider Royalties for Artists

The last time the United States Copyright Office examined the issue of whether visual artists should receive a share of the profits when their work is resold, in 1992, it concluded that resale royalties -- known internationally by the French term droit de suite -- were not a good idea. Now, after a recent re-examination of the issue, the Copyright Office has reversed itself. Acknowledging that the current system leaves visual artists at a practical disadvantage relative to other creators such as writers or composers, the office urged Congress to “consider ways to rectify the problem” and give artists a financial interest in the future sale of their work.

Benton

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