Daily Digest 12/11/2017 (Save Net Neutrality Act)

Federal Communications Commission General Counsel Thomas Johnson said the agency must “respectfully decline” requests from New York Attorney General Eric Schneiderman as part of the AG’s investigation into the fraudulent use of names on comments in the net neutrality rollback proceeding. Johnson said revealing the logs of IP addresses for some comments raises “significant personal privacy concerns” and could also endanger the security of the commission’s comment system. He also pushed back on Schneiderman’s characterization of the comment proceeding as corrupted, noting that the FCC’s draft order doesn’t rely on non-substantive comments submitted under multiple different names. “The commission does not make policy decisions merely by tallying the comments on either side of a proposal to determine what position has greater support, nor does it attribute greater weight to comments based on the submitter’s identity,” Johnson wrote. “Accordingly, the commission has never burdened commenters with providing identity verification or expended the massive amount of resources necessary to verify commenters’ identities.”

Federal Communications Commission member Mignon Clyburn took to the streets, literally, speaking to protestors outside the Federal Communications Bar Association's chairman's dinner, where FCC Chairman Ajit Pai was the featured jokester. She was also highlighting a letter to the FCC from various elected officials (mostly mayors), including mayors of New York, Los Angeles and Chicago. They called on the FCC to preserve its 2015 rules.

[Commentary] The Trump Federal Communications Commission has determined, amazingly but not surprisingly, to rush through its transfer of authority over internet service providers to the Federal Trade Commission (FTC)—even before knowing if that agency possesses the authority to handle such matters. The abrogation of authority by the expert agency responsible for the nation’s networks is shameful as it stands, but the fact that it relies on the non-existent (or at least undecided) authority of the FTC is an abomination. For those who love irony, the fact that AT&T asserted the FTC had no jurisdiction over them before the election of Donald Trump is particularly rich. Hoisted on their own petard, AT&T—the champion of pushing the FCC to disavow responsibility for internet activities—is now realizing that their short-term legal strategy against the FTC in one case could defeat their long-term strategy to make their own rules for the internet. Where’s the fire? Why the rush to judgment on incomplete facts? The FCC should at least wait and see whether the legal theory on which they base the repeal of the Open Internet Order is true. [Tom Wheeler is the former Chairman of the Federal Communications Commission]

[Commentary] On Thursday, December 14, the Federal Communications Commission will vote on a proposal to abolish net neutrality. People who care about rural America’s access to services and information should be concerned. Without net neutrality rules, consumers and the federal government have no way to prevent internet service providers from doing bad things to consumers until after the fact. And because there are no rules, how do you get providers to stop doing bad things to consumers and businesses? The stakes are higher for rural internet users, because rural areas have even less choice in internet service providers than urban residents do. Without net neutrality rules, broadband providers can set their own rules for paid prioritization (or “fast lanes”). They can create different pricing tiers or other forms of differentiated treatment for the services and content that happens to run over their network. They could cut a deal with one telehealth service to put their data in the fast lane and the competition’s in the slow lane. That puts the internet service provider in the role of helping determine where you get your medical treatment. Or it might mean consumers have to pay more to get “priority” (or faster) access to telehealth services. [Craig Settles is a broadband industry analyst, consultant to local governments]

The Federal Communications Commission is expected to vote on 12/14 to roll back the net neutrality rules in the United States. While the European Union has such rules in place, telecom providers have pushed the boundaries at times in Sweden, Germany, Portugal and elsewhere, offering a glimpse at the future American companies and consumers may face if protections are watered down. Europe adopted net neutrality rules aimed at ensuring that ISPs in the bloc’s 28 member states can’t pick the web’s winners and losers. The regulations are binding and enforced by each country’s national telecom regulators. For the European Union’s sprawling market of over 500 million citizens, the rules have mostly helped prevent bad behavior. “There is not a long trail of abuse by telecom operators in net neutrality,” said Philippe Defraigne, a director at Cullen International, a Brussels-based consultant that covers telecoms and the digital economy. That’s largely because unlike in the United States, Europeans have plenty of choices for internet access at home and on their mobile phones. France has four major mobile and internet operators and nine low-cost offshoots. Britain has more than 50. And there aren’t dominant giants born of megamergers, like the ones between Comcast and NBC Universal, and Verizon and AOL. Even so, telecom operators in Europe have tried to take advantage of some of the gray areas in the rules.

Federal Communications Commission Chairman Ajit Pai says the agency's net-neutrality rules are discouraging investment, leaving consumers with fewer, and less robust, choices for internet service, and potentially widening the digital divide. Broadband providers' own financial reports tell a different story. The nation's largest internet provider actually increased its spending during 2015 and 2016, as did several other companies. Others cut spending, but said the drops stemmed from completion of longer-term plans. The shifts highlight the challenge of determining the cause and effect of spending changes, which reflect corporate need, technological change, cost-saving innovation, and shareholder pressures, as well as regulations. There’s another consideration as well. The FCC says repealing the net-neutrality rules will remove “regulatory uncertainty” for broadband providers, and encourage them to boost spending. But the proposal will increase uncertainty for other internet companies, most notably small content providers, who may face stiff fees to distribute their work—and in some cases may not even try.

Four guiding principles for Congress to consider before crafting any online privacy legislation in order to create the strongest protections for consumers:

1. Americans deserve the right to own and control their personal information;
2. The context in which people share their personal information matters, and where individuals must provide their personal information to receive essential services -- for example, to generate a credit report necessary for nearly any major purchase -- that law should reflect the reality that the consumer has little choice by imposing a greater obligation to protect the information;
3. Americans need more privacy protection, not more privacy preemption. Federal law should recognize the vital role state privacy protections play rather than preempt them; and,
4. New privacy laws should be “backward compatible” with existing federal privacy law, rather than eliminate existing federal protections.

The paper traces the evolution of modern American privacy law from Supreme Court Justice Louis Brandeis’ seminal article, “The Right of Privacy,” to the existing enforcement regime by the Federal Trade Commission. The paper argues that as the digital age has progressed, the personal right of property has steadily eroded from a right to control one’s personal information to the modern framework which makes any control over one’s personal information dependent on privacy policies entirely controlled by companies collecting this information.

On March 19, AT&T and the Justice Department are expected to head to court to decide the future of Time Warner in what could be a historic legal showdown over a massive $85 billion merger. The timing of the trial could put AT&T in an uncomfortable position as it seeks to buy up one of the world's most valuable media and entertainment conglomerates, known for popular TV channels such as CNN and hit film franchises like the “Harry Potter” series. AT&T has been racing to get its deal with Time Warner closed by April 22, which would allow it to avoid having to pay Time Warner $500 million in recognition of its “time and expenses” spent on the process. The trial date will likely be too close to the two companies' deadline — raising the stakes for AT&T and increasing the likelihood it will have to pay Time Warner the fee.

In August, ProPublica filed public-records requests with every governor and 22 federal agencies, asking for lists of everyone blocked on their official Facebook and Twitter accounts. The responses we’ve received so far show that governors and agencies across the country are blocking at least 1,298 accounts. More than half of those — 652 accounts — are blocked by Gov Matt Bevin (R-KY). Four other Republican governors and four Democrats, as well as five federal agencies, block hundreds of others, according to their responses to our requests. Five Republican governors and three Democrats responded that they are not blocking any accounts at all. Many agencies and more than half of governors’ offices have not yet responded to our requests. Most of the blocked accounts appear to belong to humans but some could be “bots,” or automated accounts. When the administrator of a public Facebook page or Twitter handle blocks an account, the blocked user can no longer comment on posts. That can create an inaccurate public image of support for government policies. For some, being blocked means losing one of few means to communicate with their elected representatives. Ann-Meredith McNeill, who lives in western rural Kentucky, said that Gov Bevin rarely visits anywhere near her. McNeill said she feels like “the internet is all I have” for interacting with the governor.

A one-digit mistake by CNN has armed President Donald Trump with new ammunition for another fusillade against the media. CNN reported Dec 7 that Donald Trump Jr. received an email on Sept. 4, 2016, that granted special access to WikiLeaks documents. The network said in an online article that the email had been “described to CNN by multiple sources.” But The Washington Post obtained the email itself and reported in the afternoon of Dec 7 that the message was actually dated Sept. 14, 2016 — a difference that sets Trump Jr.’s receipt 10 days later. The date matters. CNN's report indicated that the Trump campaign had been fed hacked email files belonging to the Democratic National Committee and former secretary of state Colin Powell more than a week before the files were released publicly. “Interestingly,” CNN reporter Manu Raju said on the air, “the same day that Donald Trump Jr. received this email was the first time that he appears to have tweeted about WikiLeaks.” CNN presented the timing of Trump Jr.’s tweet as a possible reason to doubt his claim that he never even saw the email. The later email date reported by The Post means that Trump Jr.’s first tweet about WikiLeaks could not possibly have been prompted by the email, since the president’s eldest son did not receive the message until 10 days after tweeting.

What's President Trump hearing when he watches Fox News? He's hearing that special counsel Robert Mueller's investigation is "illegitimate and corrupt." That it's led by a "band of merry Trump-haters" who are trying to reverse the results of the election. And that it must be stopped. He's also hearing that the FBI is becoming "America's secret police," akin to the KGB in Russia, full of "sickness" and "corruption." These are all actual quotes from some of the president's favorite pro-Trump talk shows. The overarching message from "Fox & Friends" and "Hannity" is unmistakable: Mr. President, you're the victim of a "deep state" plot to take you down. Don't let it happen. The repetition is really something to behold -- not just by hosts but by guests who back up the anti-Mueller arguments. The Wall Street Journal and The New York Post -- outlets that are, like Fox, owned by Rupert Murdoch -- have also repeatedly published opinion pieces with sharp criticism of Mueller.Imagine how the president might react to hearing this rhetoric over and over again: "Mueller's stooges literally are doing everything within their power, and then some, to try and remove President Trump from office."