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  2. November 2015

November 2015

Supreme Court passes on closely watched cellphone privacy case

The Supreme Court declined to take up a closely watched case over whether police need a warrant to obtain records about people’s locations based on their cellphones, the latest chapter in an ongoing debate about how privacy laws apply to evolving technology. The decision by the nation’s high court to pass on the case, Davis v USA, comes as a blow to privacy advocates who had pressed the justices to overturn an appeals court’s determination that a warrant is not necessary for the searches. As is typical, the Supreme Court did not offer any justification in declining to take up the case.

Earlier in 2015, the 11th Circuit Court of Appeals declared that police did not violate the Constitution when they obtained 67 days' worth of records about the location of Quartavious Davis based on his cellphone calls. Based in part on those records, Davis was convicted earlier in 2015 of seven armed robberies over the course of two months in 2010. The records list the various cellphone towers that picked up the Florida man’s phone calls and served as a rough proxy for his location over the period of time surrounding the robberies. Police obtained roughly 11,000 location records about Davis from his wireless service provider, MetroPCS, amounting to one every 8 minutes. In his opinion supporting the 9-2 decision in May, Judge Frank Hull compared the records to security camera footage, which “does not belong to Davis, even if it concerns him.”

Lawmakers Demand to Know Which Agencies Use Stingray Technology

In a letter, House Oversight Committee Chairman Jason Chaffetz (R-UT), Ranking Member Elijah Cummings (D-MD), and the top two members of the panel's IT subcommittee, Reps Will Hurd (R-TX) and Robin Kelly (D-IL), asked 24 key agencies to share their policies for using Stingrays, a secretive cell-phone-tracking device that allows it to scoop up identifying information from thousands of mobile devices at once in order to pinpoint the location of a target.

The Justice Department has announced it was using stingrays, and in Oct, documents showed that even the Internal Revenue Service is using the surveillance devices, making it the 13th federal agency known to operate them, according to data from the American Civil Liberties Union. The letter Chairman Chaffetz and his fellow committee members sent Nov 9 asks for details about data-retention policies, Stingray use at the state and local level, nondisclosure agreements associated with Stingray use, and details about any alleged misuse of the technology. The signers also asked for an inventory of Stingray devices in use by each of the 24 agencies and the cost of each device.

Study: Repack Could Take More Than Decade

Repacking the TV band following the incentive auction in 2016 could take up to 11 years and cost as much as $3 billion, far longer and costlier than earlier estimates, according to a new study commissioned by the National Association of Broadcasters and submitted to the Federal Communications Commission on Nov 6. Those estimates are the study's worst case, presuming that the FCC, in clearing 84 MHz of TV spectrum, buys up to 249 stations and has to repack -- that is move to new channels -- as many as 1,200 stations. The best case is if the FCC buys some 450 stations in clearing 120 MHz and has to repack only 800 stations. In that scenario, it would take eight years to move the channels at a cost of $2 billion.

The new estimates run counter to current government policy based in part on the 2013 FCC-commissioned Widelity Report. The FCC is giving stations just 39 months after the auction to move to their new channels, and Congress has earmarked just $1.7 billion of the auction proceeds to reimburse broadcasters for the move. In a letter to the FCC being filed Nov 9, NAB asked the FCC to reconsider the hard deadline for the station repack following the auction, saying "the Commission’s one-size-fits-all deadline is manifestly unreasonable." NAB also says it has shared its concerns about the timeline with the wireless carriers who will be moving on to that vacated spectrum after the auction.

Cable Magnate Malone's Stakes Scrutinized in Charter-TWC Deal

John Malone amassed a cable fortune decades ago, sold the holdings for billions of dollars, and went on to build a media empire with reach into pay-TV, movies and satellite radio. Now Malone’s sprawling interests are being scrutinized by US regulators reviewing the deal he helped broker to merge Time Warner Cable and Charter, where he is a leading shareholder, to create the second-largest US cable company.

“It’s hard not to think about Malone when you think about Charter, about all Malone’s entanglements,” said Rich Greenfield, an analyst with New York-based BTIG. “This is one of those challenges they have to get past.” The Federal Communications Commission sent queries asking for details about Malone’s holdings in companies including Discovery Communications and premium-video supplier Starz, which supply programming to Charter rivals such as AT&T’s DirecTV and Dish Network. The FCC ’s letters to three corporations that list Malone as chairman -- Liberty Media Corp., QVC shopping site owner Liberty Interactive Corp. and Charter investor Liberty Broadband Corp. -- asked for a response by Nov 16 about his sway over Charter, Time Warner Cable, DirecTV, the Liberty entities, Discovery and Starz. The agency wants to know about plans for online delivery of shows, and whether Malone has incentives to act for and against the enlarged Charter.

UK government promises all homes will have legal right to 10Mbps broadband by 2020

The United Kingdom government will introduce a "universal service obligation" for broadband that guarantees all UK residents have the legal right to an "affordable" connection, UK Prime Minister David Cameron has pledged. By 2020, it's promised that residents will be able to request a connection of at least 10Mbps, and an Internet service provider will have to connect them no matter where in the country they live or work.

"Access to the Internet shouldn't be a luxury, it should be a right -- absolutely fundamental to life in 21st Century Britain," said Prime Minister Cameron. "Just as our forebears effectively brought gas, electricity, and water to all, we're going to bring fast broadband to every home and business that wants it." The creation of a "universal service obligation" for broadband would put Internet access on the same essentials list as water, electricity, and gas, effectively making it a fundamental right for UK residents. The government will hold a consultation on how to achieve its broadband goals in early 2016.

Over-the-Top and the Value of Data Privacy

[Commentary] Internet-based over-the-top and authenticated video distribution arrangements enable data collection. This data is a critical business asset because it allows programmers and distributors to improve their services and deliver more relevant ads by better understanding who is watching their programming, when and how they watch it, and -- when combined with other data, including third-party data sources -- viewers’ other interests and characteristics. This data, however, also raises potential business and legal risks. These distribution deals may provide distributors access to data about the traffic and users on the programmer’s digital properties because, in addition to directly distributing a programmer’s content, distributors may authenticate users on the programmer’s own sites and mobile apps.

Moreover, the collection, use and disclosure of this data potentially can implicate various privacy and data security laws. For example, the California Online Privacy Protection Act requires websites and mobile applications to have publicly posted privacy policies; the Video Privacy Protection Act restricts the disclosure of an identified person’s video viewing information; and the Cable Communications Policy Act protects the privacy of cable service subscribers. Given the business opportunities and risks associated with the data collected in connection with over-the-top and authenticated video distribution, it is surprising that data sometimes receives slight attention during the negotiation of such deals.

[Lindsey Tonsager and Robyn Polashuk are partners with international law firm Covington & Burling]

Comcast, cord cutting and the rise of broadband data caps

At a time when consumers stream more video and more movies than ever before, Comcast wants to limit the amount of data its broadband customers can use. Customers in some states, mostly in the Southeast, will soon have data caps of 300GB a month, and the new pricing model may go national before too long. Comcast isn't eager to discuss the changes, which are, in effect, price increases. However, its Data Usage CAP FAQ page lists affected cities in about a dozen states. Starting Dec. 1, customers in the affected markets face 300GB monthly usage caps, with $10-per-50GB overage fees. Comcast wants you to believe the issue is about network congestion and "fairness," but its offer of unlimited data for an extra $30 to $35 a month -- depending on the city -- belies that claim. If congestion was really the issue, it would make no sense for Comcast to let some customers use as much data as they want.

Cord cutting is a national, not regional, phenomenon so it seems likely that the company will eventually go national with its new pricing policy. In fact, a Comcast executive said in 2014 that he expects the company to roll out "usage-based billing" -- in other words, data caps -- to all of its customers within five years

With Data Caps on the Rise, the FCC Must Consider Competitive Implications

[Commentary] Many people have been "cutting the cord"-- cancelling their cable TV subscriptions -- and watching more video online. Usually, however, their broadband provider is the same company that used to be their TV provider. Cord-cutters tend to use broadband more than non-cord-cutters, so large cable companies that want cord-cutters to start paying them more again have hit on a solution: just charge more for broadband. Of course, the idea that some users should pay more than others is not objectionable. Broadband providers have offered different speed tiers for years. The question is what the secondary effects are of a usage-based model, and how the level at which any data caps are set can affect this. For instance, a data cap that is too low can discourage certain kinds of usage, including online video, backup services, and streaming games. A data cap is also harder for users to conceptualize, while the difference between "fast" and "slow" Internet is widely understood.

Thus, usage-based billing and data caps raise a host of issues, which is why the Federal Communications Commission should act on Public Knowledge's years-old request for the FCC to investigate why caps are being set (for example, whether they are anticompetitively designed to prevent further customers from cutting the cord, or just to raise revenue), and the level at which they are set. More broadly, cable broadband providers are only able to raise their rates in ways both blatant and hidden without losing customers because they do not operate in a competitive environment. Unless we can address that fundamental problem, the FCC must ensure that broadband providers do not take advantage of their market power to impose unfair broadband billing practices.

We need a Data Journalism Archive. Before it becomes just another 404 error.

[Commentary] Are we about to enter a dark age of data journalism? The Internet has made it possible to see the world’s information without moving a muscle, not matter how old that information is. You can absorb the first news page of the Guardian, from May 1821, which had data journalism at its heart, even then. But data journalism is not part of these archives.

Much of it has become a victim of code rot -- allowed to collapse or degrade so much that as software libraries update or improve, it is left far behind. Now when you try to find examples of this work, as likely as not you will end up at a 404 page. At the same time, for many publishers, every word, no matter how facile or pointless, is saved as if it were a work of studied genius. This is the fantastic thing about archives: They give you a picture of a world from the past, one that can shape how you produce the future. But it’s only the words that are saved. Meanwhile, a map, an interactive guide, or even just a set of interactive charts will vanish as if they never ever existed. It’s time for a Data Journalism Archive. Before we forget everything we know.

[Simon Rogers is a data journalist and has worked at the Guardian, Twitter, and now at Google]

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