Wednesday, January 30, 2019
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Some proponents of the Dec 2017 repeal of network neutrality argue that a year after the decision, the internet is still functioning -- but that doesn’t mean the internet isn’t changing. Consumers may not have noticed broadband providers making network management adjustments, because they are purposefully small and gradual, but they are crucial steps in preventing an open internet. There have been several potential net neutrality violations since the repeal went into effect. If the repeal continues, the way consumers access the internet will gradually change. The need for protections is clear.
[Lindsay Stern is a policy fellow at Public Knowledge]
New House Communications Subcommittee Chairman Mike Doyle (D-PA) said that network neutrality will be the subject of the first subcommittee hearing under his chairmanship. In a speech to the State of the Net conference in Washington, Chairman Doyle called network neutrality one of the preeminent digital rights issues and said he plans to continue to fight to restore the rules. He said Internet service providers have "far too much" control over American's connection to the internet and whether it is slowing Netflix or anticompetitive zero rating plans, the track record of ISPs is clear and consumers need protection.
Some may be tempted to predict judicial outcomes by looking at the party of the judges and the President who nominated them. The panel scheduled to hear Mozilla v. Federal Communications Commission in the Court of Appeals for the DC Circuit features judges who have both ruled for and against administrative agencies. The panel includes Senior Circuit Judge Stephen Williams (appointed by President Reagan) who issued a blistering 68-page dissent against the FCC’s Open Internet Order in 2015. While the court upheld the order, the FCC vacated it in 2017 and issued the Restoring Internet Freedom Order, which is now being challenged in the court. The two other judges are Patricia Millett and Robert Wilkins, both appointed by President Obama. A cursory review of some of the recent opinions of the judges suggests that conventional interpretations of administrative law are more likely to take precedence than political preferences. In such cases, judges typically determine whether an agency followed the proper procedure and whether interpretations are reasonable per the statute.
Earlier this month, CenturyLink and Frontier updated the Federal Communications Commission on the companies' progress deploying broadband service using support from the FCC's Universal Service Fund. In 2015, both CenturyLink and Frontier accepted Connect America Fund (CAF) Phase II support to deploy broadband service. CenturyLink was to deploy service to over one million locations in 33 states; Frontier to over 774,000 locations in twenty-nine states. But the funds came with obligations to hit deployment milestones. CenturyLink now says it reached December 2018 in twenty-three states, but has not reached the deployment milestone in 11 states: Colorado, Idaho, Kansas, Michigan, Minnesota, Missouri, Montana, Ohio, Oregon, Washington, and Wisconsin. Frontier met the milestone in 27 states, but hasn't met the CAF Phase II sixty percent interim deployment milestone in Nebraska and New Mexico.
In Sept, the Washington DC Office of the Chief Technology Officer (OCTO) piloted its “All Hands on Tech” program, setting up two repair events in which the city’s own technicians helped residents fix their devices. Volunteers from local nonprofits like ByteBack, which prepares adults for a career in technology, also came out to help. The events were held at libraries inside Wards 7 and 8, where some of DC’s poorest communities live. America’s digital divide is essentially boiled down to three things. “Nationally, you will hear device access mentioned along with internet access and training as the three-legged stool of digital inclusion,” says Delano Squires, head of OCTO’s digital inclusion initiative Connect.DC. Yet there’s little benefit in having a computer that’s infected with malware, or a smartphone you don’t know how to set up. What residents needed was tech support.
A string of controversies in recent years involving tech companies has led many observers to call for stronger antitrust enforcement and a tougher competition policy. A new addition to this public demand comes from an unlikely source: In Nov 2018, the Supreme Court heard oral arguments in a case brought by Apple to dismiss a lawsuit from Robert Pepper and three other iPhone owners. The defendants in Apple Inc. v. Pepper accuse the company of acting like a monopolist by controlling which apps to publish in its app store, taking a cut of sales, and prohibiting other app distributors. The Court’s decision could have major implications beyond this case for e-commerce companies that act as platforms for matching buyers with sellers. A decision for the defendants in Apple Inc. v. Pepper might also force large platform companies to alter current business models based on providing mobile apps. Any platform that builds a “walled garden” and then acts as a gatekeeper and toll collector should have to justify this behavior in terms of consumer impact. Otherwise, they risk legal challenges like Apple Inc. v. Pepper that argue that this arrangement is harmful for consumers and anti-competitive for app developers.
An indictment unsealed on Jan 28 claims that telecommunication equipment vendor Huawei stole trade secrets from Bellevue (WA)-based T-Mobile USA and then obstructed justice when T-Mobile threatened to sue Huawei in US District Court in Seattle. According to the indictment, in 2012 Huawei began a concerted effort to steal information on a T-Mobile phone-testing robot dubbed “Tappy.” In an effort to build their own robot to test phones before they were shipped to T-Mobile and other wireless carriers, Huawei engineers allegedly violated confidentiality and nondisclosure agreements with T-Mobile by secretly taking photos of “Tappy,” taking measurements of parts of the robot, and in one instance stealing a piece of the robot so that the Huawei engineers in China could try to replicate it. The indictment also claims that after T-Mobile discovered and interrupted these activities and then sued in 2014, Huawei produced a report falsely claiming that the theft was the work of rogue actors within the company and not a concerted effort by Huawei. The indictment says that emails obtained in the course of the investigation reveal the conspiracy to steal secrets from T-Mobile was a companywide effort involving many engineers and employees. As part of the investigation into Huawei, the FBI says it obtained emails revealing that in July 2013, Huawei offered bonuses to employees based on the value of information they stole from companies around the world.
US District Judge Lucy Koh in San Jose (CA) has rejected a proposed settlement that would put an end to the years-long lawsuit over the company’s 2016 disclosure that it had been hit by nation-state hackers that exposed hundreds of millions of accounts. Judge Koh, who has presided over many tech-related cases, including the Apple v. Samsung trial, lambasted Yahoo for its lack of transparency over how it has handled the aftermath of the breach. "Yahoo has not committed to any specific increases in budget for data security and has made only vague commitments as to specific business practices to improve data security," she wrote. "Yahoo’s history of nondisclosure and lack of transparency related to the data breaches are egregious. Unfortunately, the settlement agreement, proposed notice, motion for preliminary approval, and public and sealed supplemental filings continue this pattern of lack of transparency." The proposed settlement would have paid out $50 million to the affected users, plus two years of free credit monitoring for approximately 200 million people in the United States and Israel.
Senate Intelligence Committee Vice Chairman Mark Warner (D-VA) fired off a letter to the Department of Homeland Security seeking to "better understand the shutdown’s toll on our national security," and sought answers on what, if any, cybersecurity risks were posed by the recent, and possibly future, government shutdown(s). "Cybersecurity and Infrastructure Security Agency (CISA) was forced to suspend crucial efforts to protect our cybersecurity and infrastructure," said Sen Warner. "Also hindered was the FBI’s ability to conduct cyber investigations. Some agents reported lacking the funds to pay their confidential human sources, therefore losing critical information and irreplaceable sources." Sens Amy Klobuchar (D-MN), Ed Markey (D-MA), Tom Udall (D-NM), Catherine Cortez Masto (D-NV), and Cory Booker (D-NJ) sent a similar letter to DHS and the National Security Agency. The senators were responding to reports that the nation's cybersecurity teams were operating with less than half their staffs during the shutdown and that scores of government agencies' websites were either insecure or inaccessible because their security certifications had expired.
Desperate for data on its competitors, Facebook has been secretly paying people to install a “Facebook Research” VPN that lets the company suck in all of a user’s phone and web activity, similar to Facebook’s Onavo Protect app that Apple banned in June and that was removed in August. Facebook sidesteps the App Store and rewards teenagers and adults to download the Research app and give it root access to network traffic in what may be a violation of Apple policy so the social network can decrypt and analyze their phone activity.
Sens Ed Markey (D-MA) and Richard Blumenthal (D-CT) sent a letter to Facebook demanding information about new evidence that the company knowingly manipulated children into spending their parents’ money without permission while playing games on Facebook. Recent findings uncovered by The Center for Investigative Reporting show that Facebook personnel had direct knowledge that children were spending large sums of their parents’ money on in-app purchases without parental knowledge or permission. Specific design features and default settings fostered this practice. In addition, reports suggest that when Facebook became aware of this phenomenon and identified a solution, the company declined to implement the fix, and even designed a mechanism to automatically dispute its users’ requests for refunds. “Reporting suggests that your users requested refunds for over 9% of the money Facebook made from children, raising serious questions about whether your company has engaged in deceptive business practices and whether all of those affected have been made whole,” write the Sens in the letter to Facebook CEO Mark Zuckerberg. “Together, these findings point to a problematic culture of putting profits ahead of your users’ financial wellbeing and raise serious concerns regarding the company’s willingness to engage responsibly in its interactions with children.”
Since announcing his candidacy in the 2016 presidential elections to the end of his second year in office, President Donald Trump has sent 1,339 tweets about the media that were critical, insinuating, condemning, or threatening. In lieu of formal appearances as president, Trump has tweeted over 5,400 times to his more than 55.8 million followers; over 11 percent of these insulted or criticized journalists and outlets, or condemned and denigrated the news media as a whole. To better monitor this negative rhetoric, CPJ's North America program created a database to track tweets in which Trump mentioned the media, individualjournalists, news outlets, or journalistic sources in a negative tone. CPJ found that the focus of the tweets has shifted dramatically. During the campaign, Trump frequently called out specific journalists by name or Twitter handle, accounting for over a third of his negative tweets about the press during that period. This trend declined in the months leading up to the election and, since taking office, his focus shifted instead to the media as a whole, accounting for 63 percent of his tweets about the press in the first two years of his presidency, compared with 23 percent as a candidate. The overall number and rate of Trump's tweeting has also decreased since he took office. However, those targeted at the press constitute a larger percentage of his total tweets during his presidency.
At the State of the Net conference, House Communications Subcommittee Ranking Member Bob Latta (R-OH) said that regulators and legislators need to make sure they are not looking in the rearview mirror or putting up roadblocks to innovators who are looking ahead, not backwards. He said that one message he has brought back from his visit to tech startups is they are focused on innovation, so there is not a compliance officer sitting in the corner of the room. Ranking Member Latta also said he thought there was room for consensus on network neutrality. Still, he made a pitch for keeping Internet serivce providers under Title I and the arguments for those. He also said that there are pro-consumer uses of location data, but that access to services, sometimes lifesaving, must be balanced with privacy protections. He signaled that is another area of potential bipartisan agreement. He said it is important not to throw the "Life Alert" baby out with the privacy bathwater, citing his mother's use of that geolocation technology when she had a fall.
Department of Justice antitrust chief Makan Delrahim says that the DOJ will be holding a two-day workshop on the impact of online advertising on the local broadcast TV market, and whether it should adjust its merger reviews given the argument that the edge is now competing for the local car dealer ads and should be considered part of the relevant competitive market. Justice has been considering the issue in relation to a couple of recent merger reviews, Delrahim pointed out, specifically the aborted Sinclair-Tribune merger, and the follow-up Nexstar-Tribune merger. Delrahim said that in some ways Google is not so different from broadcasters, which raises the possibility of including them both in the same competitive market, something broadcasters have long argued is the case. The more competitors in a market, the less Justice needs to worry about anticompetitive effects of mergers.
Federal Communications Commission Chairman Ajit Pai announced that the February Open Commission Meeting has been rescheduled and will take place on Thursday, February 14, 2019. Chairman Pai also announced the items below are tentatively on the agenda for the February Open Commission Meeting. These items were originally circulated for the January meeting but were withdrawn due to the lapse in appropriations.
Transitioning to CAF Phase II Auction Support in Price Cap Areas – The Commission will consider a Report and Order establishing a schedule to end Connect America Fund (CAF) Phase I support in price cap areas where winning bidders in the CAF Phase II auction will begin receiving Phase II support and in areas that were not eligible for the auction, while providing interim support in areas that did not receive any bids. (WC Docket No. 10-90)
Licensing Noncommercial Educational Broadcast and Low Power FM Stations – The Commission will consider a Notice of Proposed Rulemaking proposing revisions to the Commission’s NCE and LPFM comparative processing and licensing rules. (MB Docket No. 19-3)
Elimination of Form 397 – The Commission will consider a Report and Order eliminating the requirement in Section 73.2080(f)(2) of the Commission’s rules that certain broadcast television and radio stations file the Broadcast Mid-Term Report (Form 397). (MB Docket Nos. 18-23, 17-105)
Internet Protocol Captioned Telephone Service (IP CTS) – The Commission will consider a Report and Order, Further Notice of Proposed Rulemaking, and Order adopting some measures, and seeking comment on others, to enhance program management, prevent waste,
fraud, and abuse, and improve emergency call handling in the IP CTS program. (CG Docket Nos. 13-24, 03-123)
Anti-Spoofing Provisions of the RAY BAUM’S Act – The Commission will consider a Notice of Proposed Rulemaking proposing to amend its Truth in Caller ID rules to implement the anti-spoofing provisions of the RAY BAUM’S Act. (WC Docket Nos. 18-355, 11-39)
As a result of the recent lapse in funding, the Federal Communications Commission suspended most operations from the middle of the day on January 3, 2019, through January 25, 2019, for a total of 23 days. Among other things, certain electronic filing and database systems were unavailable from January 3, 2019, until January 28, 2019. Because parties did not have full access to some electronic systems and databases during the suspension of operations, the FCC has determined to further extend the deadlines for filings according to the following schedule. Filings that were due between January 3 and January 7, inclusive, will be due on January 30, 2019. Filings that would otherwise be required to be filed between January 8 and February 7 will be due for filing on February 8, 2019.
The influence network led by billionaire Charles Koch is watching a growing push to regulate Big Tech firms with alarm. Officials, scholars, and donors with links to the network expressed unease with the idea that sweeping regulation will solve tech's problems — like platforms that facilitate the spread of malicious content or privacy practices that outrage users — and worried lawmakers aren't being precise enough. “Take the example of privacy — what’s the actual problem you’re trying to solve?" said Jesse Blumenthal, who leads the Charles Koch Foundation's tech policy work. People are proposing solutions instead of answering questions first, he added. Art Pope, a retail magnate and prominent donor to the network's activities, said that while he believes social media companies are biased against conservatives, he thinks they should be regulated by "voluntary societal pressure" instead of governments.
From Louis Brandeis’s perspective, application of antitrust laws required both the embrace of hard-headed inquiry, spanning economics and the social sciences, and the litigator’s skill of distilling crucial facts. Brandeis’s work as a lawyer in private practice, his stint as special counsel to the Interstate Commerce Commission (ICC), and his time on the bench demonstrate his commitment to solving social and economic problems, examining the practical reality of economic circumstances, and serving the purposes of the law with rigor and commitment.
A month after the City of South Bend’s first Chief Innovation Officer stepped down, the city has named Denise Linn Riedl to fill the position. Riedl is a Benton Foundation Fellow and previously worked at the City Tech Collaborative in Chicago and also held positions at the Smart Chicago Collaborative and the Federal Communications Commission. Riedl will start work for South Bend on February 11.
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