Developments in telecommunications policy being made in the legal system.
With each tweet, President Trump says he’s redefining the American presidency, describing his use of social media as “modern day presidential” and necessary to fight what he deems fake news. Not everyone agrees on the substance of Trump’s social media message, but both his supporters and detractors have something in common: They want access to Trump’s frenetic Twitter feed. Which is why the Knight First Amendment Institute at Columbia University filed a federal lawsuit on behalf of seven Twitter users who say their 1st Amendment rights were violated after they were blocked from reading Trump’s personal account (@realDonaldTrump, not the official @POTUS account) after criticizing him or his policies. The suit, filed in US District Court in the Southern District of New York in Manhattan, names President Trump, White House Press Secretary Sean Spicer and White House director of social media Dan Scavino as defendants. The Knight Institute sent a letter to the White House in June threatening legal action if it didn’t heed its call to unblock followers.
The American Civil Liberties Union of New Mexico has sued the city of Albuquerque, seeking records by the city’s police department about its use of stingrays, also known as cell-site simulators. In May 2017, the ACLU of New Mexico filed a public records request to the Albuquerque Police Department (which has been under federal monitoring for years), seeking a slew of information about stingrays. The requested info included confirmation on whether the police had stingrays, "policies and procedures," and contracts with the Harris Corporation, among other materials. Albuquerque denied many of these requests, citing a state law that allows some public records to be withheld on the grounds that they reveal "confidential sources, methods." So, the week of July 3, the ACLU of New Mexico sued.
In a big victory for cable operators large and small, a federal court has said the Federal Communications Commission was within its authority to make it easier for cable video services to shed basic rate regulations. The US Court of Appeals has upheld the FCC's decision—under former chairman Tom Wheeler—reversing the rebuttable presumption that cable operators are not subject to local competition, thereby making regulators prove there is a lack of competition or rate regulations go away.
The onus had been on cable operators to prove their was competition, but the FCC concluded that the near-nationwide availability of DBS essentially represented that competition. The commission, with the strong backing of cable operators—NCTA–The Internet & Television Association and American Cable Association both intervened in the court challenge on the FCC's side—in 2016 voted to reverse the rebuttable presumption and assume cable systems faced local market competition (primarily given the ubiquity of satellite TV) unless telecom regulators or other challengers could prove they did not. A finding of effective competition lifts basic cable price regulations. Writing for the three-judge panel that rejected the challenge to that decision by the National Association of Broadcasters, the National Association of Telecommunications Officers and Advisors, and the Northern Dakota County Cable Communications Commission, judge Douglas Ginsburg said the FCC decision was within its authority.
A federal judge in California has decided to allow Twitter’s lawsuit against the attorney general’s office to go forward. She rejected arguments that the social media giant should not be allowed to be precise in its transparency reports when describing how it responds to the government’s requests for user data.
Twitter has argued that, just as it has been precise in other areas of its transparency report, so too should it be allowed to say precisely how many national security orders it has received from American authorities. For now, under federal law, it is only allowed to describe those numbers in vague ranges, such as “0 to 499,” and “500 to 999,” and so forth. Lawyers for Twitter say that this law constitutes a violation of the company’s First Amendment rights and is “prior restraint,” a concept of blocking legitimate speech before it is uttered. Attorneys from the Department of Justice claimed in a hearing in federal court in Oakland, California, earlier this year that if Twitter is allowed to specifically say how many national security orders it has received, potential adversaries could somehow use that number to inflict harm. But the judge didn’t buy it.
Billionaire Carlos Slim's America Movil argued on July 5 against rules brought in by an overhaul of the country's telecommunications industry, saying in a statement they were unfair and had led to a loss of its business rights. In the latest chapter in a fight that could shape the future of competition in the sector, the supreme court is considering whether to undo parts of an overhaul that tilted the playing field against Slim's long-dominant America Movil and led to steep drops in prices that Mexicans pay for cell phone service and internet access.
Slim's lawyers argued that unfair "asymmetrical" rules prohibit America Movil from charging other telephone carriers for connecting their calls made to customers on its network, but let those companies charge America Movil for connecting its calls to their customers. The so-called "zero tariff" applied to Slim's company has undermined the power of the sector's regulator IFT as well as the rights of America Movil units Telmex and Telcel under past concessions awarded to them by the government, the statement said. The company said it has been harmed by the elimination of its rights to "cost recovery, economic stability and financial balance" granted by the concessions.
On the surface, the investigation was routine. Federal agents persuaded a judge to issue a warrant for a Microsoft e-mail account they suspected was used for drug trafficking. But US-based Microsoft kept the e-mails on a server in Ireland. Microsoft said that meant the e-mails were beyond the warrant’s reach. A federal appeals court agreed. Late in June, the Trump administration asked the Supreme Court to intervene. The case is among several legal clashes that Redmond (WA)-based Microsoft and other technology companies have had with the government over questions of digital privacy and authorities’ need for information to combat crime and extremism.
Privacy law experts say the companies have been more willing to push back against the government since the leak of classified information detailing America’s surveillance programs. Another issue highlighted in the appeal is the difficulty that judges face in trying to square decades-old laws with new technological developments. In the latest case, a suspected drug trafficker used Microsoft’s email service. In 2013, federal investigators obtained a warrant under a 1986 law for the e-mails themselves as well as identifying information about the user of the e-mail account. Microsoft turned over the information, but went to court to defend its decision not to hand over the e-mails from Ireland.
A US judge has dismissed nationwide litigation accusing Facebook of tracking users' internet activity even after they logged out of the social media website. In a decision late on June 30, US District Judge Edward Davila in San Jose (CA) said the plaintiffs failed to show they had a reasonable expectation of privacy, or that they suffered any "realistic" economic harm or loss.
The plaintiffs claimed that Facebook violated federal and California privacy and wiretapping laws by storing cookies on their browsers that tracked when they visited outside websites containing Facebook "like" buttons. But the judge said the plaintiffs could have taken steps to keep their browsing histories private, and failed to show that Facebook illegally "intercepted" or eavesdropped on their communications. "The fact that a user's web browser automatically sends the same information to both parties," meaning Facebook and an outside website, "does not establish that one party intercepted the user's communication with the other," Davila wrote.
In the fierce fight over Federal Communications Commission Chairman Ajit Pai's effort to roll back the network neutrality rules, it won't be Chairman Pai or his opposition who has the final say. The battle is almost certainly headed to a familiar place — federal court — where judges will determine its fate. Throughout the decade-old debate over whether and how to regulate internet access, the issue has sparked repeated lawsuits that sent FCC officials back to the drawing board. Players on both sides say it’s all but certain this latest go-around will end in litigation again. "When I was general counsel, I didn’t think that what the FCC said was the last word on the matter. I knew there would be a day in court," Jon Sallet, who served as the agency's top lawyer in the Obama era, said during a net neutrality town hall
Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Crime and Terrorism Subcommittee Chairman Lindsey Graham (R-SC) have asked for all the surveillance warrants the FBI asked for from the Foreign Intelligence Surveillance (FISA) Court as part of the FBI's investigation into Russian campaign interference, including possible collusion with the campaign of Donald Trump.
The top Republicans cited stories by both the BBC and CNN, the latter of which President Trump continues to brand as fake news. The request by the senators was based on news reports that the Justice Department had asked the court for authority to monitor members of the Trump presidential campaign—which the court denied, advising the FBI to narrow its focus. They said they want copies of both classified and non-classified.
Some of the nation's biggest Internet service providers are begging a court not to weaken the power of a major regulatory agency — the Federal Trade Commission — in a case that has implications for businesses and consumers nationwide and puts the companies at odds with another key industry player, AT&T.
The request earlier this week by Charter, Comcast, Cox and Verizon seeks to shore up the FTC's ability to regulate Internet providers, in a case about whether the FTC can punish AT&T for allegedly misleading consumers with its marketing of "unlimited" data plans. But the case also has other implications. It could create an undesirable regulatory environment for the companies, they say. "At first glance, [our] position might seem surprising — four leading corporations are arguing in favor of restoring the FTC’s authority to regulate," the ISPs wrote. They added: "If the FTC is divested of jurisdiction," the companies wrote, "it is likely that a variety of federal, state, and local government agencies that lack the appropriate reach, perspective, and experience … will attempt to fill the perceived 'regulatory gaps,' thereby creating a patchwork of unreasonable, duplicative, and inconsistent rules."