Hill, The

The nation’s second most powerful court upheld a ruling from the National Labor Relations Board (NLRB) in a labor dispute between the DirecTV and employees of its subcontracting satellite installation company MasTec. The US Court of Appeals for the DC Circuit court ruled 2-1 that DirecTV must reinstate the MasTec technicians it fired for complaining about the company’s new pay policy in an interview with a local news station. Employees that protest an employer action or policy are protected under NLRB rules from being retaliated against unless their actions rise to the level of "flagrant" or they say malicious or untrue statements about the employer.

In this case, DirecTV argued that the technicians were not protected under NLRB rules because the statements they made in the TV interview were "maliciously untrue and flagrantly disloyal, wholly out of step with the employees’ objections to the pay policy." NLRB disagreed and found that the company’s firing of the employees was an unfair labor practice. In it’s decision, the court upheld NLRB’s order requiring DirectTV to reinstate the employees.

[Commentary] The public debate in the US over encryption has focused almost exclusively on law enforcement officials’ concerns that they will not have access to information that could help solve crimes. But there has been little discussion of the known real world impact of mandates in this area. In the 1990s, when then FBI Director Louis Freeh lobbied Capitol Hill and the Clinton Administration for greater law enforcement access to communications, regulations were put in place to prohibit US citizens from exporting strong encryption products to other countries. While this prevented US companies from using encryption that law enforcement couldn’t access, it did not stop foreign companies from building advanced encryption tools, and creating new security markets in countries like Israel, Canada and Russia.

Instead of mandating technical solutions and impacting research, we need to develop encryption solutions that encourage a robust US security marketplace. As many Internet security experts have suggested, we could invest in greater research by government so that it can find more vulnerabilities in our systems themselves and, eventually, share these with the vendors. We could enhance the technical know-how of state and local law enforcement officials so that they understand how current technologies process information and what they can lawfully access under the current regime. We could build closer ties among researchers, the FBI and local law enforcement to find novel solutions to access information without building back doors. These solutions will not solve every problem, but they will start us down the path of allowing law enforcement to adapt to the continuing changes in new technologies without creating the unintended consequences that we’ve faced in the past.

[Schwartz is Managing Director for Cybersecurity Services at Venable LLP. He was formerly Senior Director for Cybersecurity Policy and Special Assistant to the President for Cybersecurity on the National Security Council from 2013-2015.]

The FBI is imposing new restrictions making it more difficult for investigators to impersonate journalists, following scrutiny over a 2007 episode in which the bureau posed as a reporter to track a suspected criminal. The FBI did not violate its internal policy during that controversial incident, the Justice Department’s Office of the Inspector General claimed in a 30-page report.

“In 2007, FBI policies did not prohibit the practice of agents impersonating journalists, nor was there any requirement that agents seek special approval to engage in such practice,” the watchdog concluded. Yet June 2016, it implemented an interim policy barring impersonation of a journalist without approval from the FBI’s deputy director, the watchdog revealed. That move “is a significant and important improvement to FBI policies,” the inspector general’s office claimed. The changes are the result of a 2007 incident when FBI investigators wrote a fake AP story and placed it on a website designed to mimic the Seattle Times in order to infect a suspect’s computer. A link to the story bearing the headline “Bomb threat at high school downplayed by local police department” was sent to the MySpace page of a student suspected of making multiple threats against the school and launching cyberattacks against its computer network. In followup emails to the student, Charles Jenkins, an FBI investigator portrayed himself as an “AP staff publisher” in order to get Jenkins to click on the link and links to other photographs. The operation became public in 2014 and was immediately attacked by news organizations claiming that it eroded the public’s trust in journalists.

[Commentary] While Donald Trump’s wall has received considerable press, a different wall has been created to block Hispanics from having a say in a subject that affects their entire culture. It is a wall that has kept Hispanic-Americans out of the debate regarding their own future. Every day, major media outlets discuss candidate views and policies on Hispanic immigration. However, the Commission on Presidential Debates has yet to select a single Hispanic-American academic, journalist or political figure to moderate a Presidential Debate. This is a glaring omission that must change!

Hispanic professionals know immigration better than anyone because we live with the issue every day. We have friends and families that have immigrated and understand the problems and stigmas faced as immigrants. More important, we understand what it is like to be labeled and judged based on all the media about immigration. The Commission on Presidential Debates must correct this unfortunate misstep of lacking a Hispanic-American voice in this election’s presidential debates.

[Javier Palomarez is the President and CEO of the U.S. Hispanic Chamber of Commerce]

Escalating tensions between Senate Republicans and the National Telecommunications & Information Administration (NTIA) came to a head at a hearing on transferring management of the Internet domain name system. Senate Oversight Subcommittee Chairman Ted Cruz (R-TX) opened the hearing with a blistering warning that the transition would make the Internet vulnerable to censorship and weaken the First Amendment. Sen Cruz has been fighting against transition of oversight of the domain name system — which is central to how consumers reach websites — since before Congress returned from its summer recess. The change is set to happen at the end of September, unless Congress blocks it. Ranking Member Chris Coons (D-DE) called the hearing unnecessary and challenged Sen Cruz’s opposition the management change.

But Sen Cruz’s aggressive rejection of the transition bled into the witness testimony. He battled top NTIA official Lawrence Strickling, who became visibly frustrated as Sen Cruz suggested that the NTIA may have violated federal law by assessing the transition. Strickling says it is "extreme and wrong" to claim the transition would be a giveaway to China or Russia, saying the contract is too limited to be a tool for protecting Internet freedom, while "failing to follow through on the transition or unilaterally extending the contract will only embolden authoritarian regimes to intensify their advocacy for government-led or intergovernmental management of the Internet via the United Nations." “Senator, if I may finish …,” Strickling said at one point in attempting to clarify the NTIA's responsibilities. “No you may not,” Sen Cruz said. “You may answer my questions.” Sen Cruz warned Commerce Department officials they could face jail time for their efforts to hand control of the Internet's domain name system to an international group, saying they violated congressional funding restrictions.

House Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD) accused Republicans on the Federal Communications Commission of obstructing an investigation into 2015’s network neutrality debate. Rep Cummings said that commissioners Ajit Pai and Michael O’Rielly have not provided documents as part of an investigation into the process leading up to the net neutrality rules the commission approved last February.

“I am writing to request an explanation for your refusal to provide any documents in response to a request from the Oversight Committee more than a year ago relating to the rulemaking process for the Open Internet Order, which was released publicly on March 12, 2015,” Rep Cummings said in the letter. "Your refusal to cooperate with the Committee’s request is unacceptable, it obstructs our investigation, and it prevents the Committee from having a complete or accurate understanding of the circumstances surrounding this rulemaking," he said. He asked that by Sept 16 the two commissioners lay out the steps they have taken to respond to the committee’s request and to say when their offices will fulfill the request.

[Commentary] From strengthening cybersecurity, to promoting the free flow of information worldwide, to expanding broadband access, the Obama Administration has consistently championed policies to ensure the Internet remains the greatest platform for free expression, innovation, and economic opportunity ever known. Yet just as the United States, our allies, and global Internet freedom advocates prepare to enact a long-term framework to protect the web from government intrusion, some in Congress are threatening to derail this effort. Their claim that President Obama "is giving away the Internet," is a patently false and misleading distortion.

[Penny Prtizkers is the US Secretary of Commerce]

The Senate's top two Democrats are sending early warning signs that a push by Sen Ted Cruz (R-TX) to link a fight over control of the Internet to a short-term government funding bill is a non-starter. Asked if Democratic Sens are opposed to Sen Cruz's push to include a rider to block the Obama Administration from relinquishing the oversight role the United States has had over the Internet, Sen Dick Durbin (D-IL) said "of course." "If he's going to be allowed to dream up an issue and produce it and say we're going to stop the government, which he has quite a good reputation of doing... where in the heck are the Senate Republicans?" Sen Durbin added.

Sen Cruz's push comes as lawmakers are facing a looming Oct 1 deadline to get a deal on government funding to avoid a shutdown. Under Senate rules, any member of the chamber could force the Senate to go through lengthy procedural hurdles before it can take a final vote on a short-term spending bill. Senate Minority Leader Harry Reid (D-NV) also pointed to Sen Cruz's Internet fight as one of myriad policy issues that still needs to be worked out as part of the spending discussions, arguing it's an "attempt to slow down the [continuing resolution]." "Unfortunately this is what we've come to expect from my friend, the junior senator from Texas. When the Senate has a deadline, he tries to obstruct government funding bills," he added. "So we have our work cut out for us." Sen Cruz is expected to hold a hearing Sept 14 about the transition. If Congress fails to act by the end of Sept, the transfer will take place, giving Sen Cruz leverage to get the issue included in the CR.

A federal judge in Texas has ruled that hacking someone’s computer counts as a “search,” meaning police must get a warrant to hack into someone’s computer. Senior US District Judge David Alan Ezra of the San Antonio division of the Western District of Texas court ruled that the FBI needed a proper warrant when it hacked Jeffrey Jerry Torres’s computer.

Torres is facing charges of receiving and possessing child pornography. Torres and others were allegedly caught by the FBI for using the dark web child pornography site, Playpen. “[The contention that] Mr. Torres did not have a reasonable expectation of privacy in his IP address is of no import. This was unquestionably a “search” for Fourth Amendment purposes,” Ezra wrote. In February 2015, the FBI seized and then ran Playpen, for two weeks. In that time they installed malware on users computers to identify suspects. In a previous case, a judge had ruled that because when users accessed Playpen, via the dark web browser Tor, they made their IP address known to another computer to access Tor, thus giving up any reasonable expectation of their privacy of their IP address. Ezra disagreed with this, supporting the idea that Tor users had a reasonable expectation of privacy on the platform. The warrant that the FBI used in the Torres case also came under question because it was used to obtain information beyond the district that it was issued in.

Sen Ted Cruz (R-TX) hammered on the Senate floor the Obama Administration's deal to relinquish supervision of the Internet Corporation for Assigned Names and Numbers (ICANN). Sen Cruz said President Obama’s decision “poses a significant threat to our freedom,” and that “it will empower countries like Russia, China and Iran to be able to censor speech on the internet.” Sen Cruz said that he isn’t convinced that an international regulatory body would be free from influences that could lead to internet censorship. The senator also highlighted national security concerns. “Congress has received no insurance from the government to keep dot-gov or dot-mil” domain names, he said, which could facilitate “foreign phishing scams.”

A national security expert refuted this, saying that the transition wouldn’t affect .mil or .gov names. According to the expert, these are already under the jurisdiction of the federal government and would remain there regardless of who controlled IANA. That expert also argued that US supervision of ICANN and IANA would give some countries a political excuse to attempt to intervene in the affairs of the organizations, but that they would have no such leverage in the hands of an international body.