Digital Content

[Commentary] Despite its name, the California Broadband Internet Privacy Act, awaiting votes in the state Senate, won’t do anything meaningful to protect consumer privacy on line. Instead, it will curb innovation and reduce competition, hurting consumers whose interests it purports to protect.

The measure, AB 375 by Assemblyman Ed Chau (D-Monterey Park), is intended to crack down on internet service providers that are allegedly selling sensitive personal web browsing information without consumers’ consent. Its backers argue that it will fill a supposed “privacy gap” left when Congress repealed Federal Communications Commission draft rules adopted during Barack Obama’s administration. Here’s why they’re wrong. First, the proposal attacks a nonexistent problem. Internet service providers have committed that they will seek permission from consumers before using sensitive personal information, such as health and financial data. Customers will have to affirmatively “opt in” before any such transaction could take place. So no one’s personal data is being sold. Second, even if a problem exists, there are legal tools to combat it. In short, there is no legislative privacy gap. Third, the state bill is based on a flawed proposal by the FCC. Don’t take my word for it. Ask America’s top privacy cop, the FTC.

[Jon Leibowitz, a partner at Davis Polk & Wardwell, was Federal Trade Commission chair from 2009-2013. He is co-chair of the 21st Century Privacy Coalition, a trade group of broadband providers.]

Personality quizzes have some sort of perennial appeal. Facebook newsfeeds are filled with BuzzFeed quizzes and other oddball questionnaires that tell you which city you should actually live in, which ousted Arab Spring ruler you are, and which Hogwarts house you belong in. But these new online quizzes have a dark edge that their analog predecessors didn’t.

In the wake of the US election, a secretive data firm hired by Donald Trump’s campaign boasted that it has been using quizzes for years to gather personal information about millions of voters. Its goal: the creation of digital profiles that can predict—and possibly exploit—Americans’ values, anxieties, and political leanings. Whether this firm, Cambridge Analytica, has actually used predictive profiles to influence people isn’t certain; reports suggest it hasn’t, at least not directly. But the company’s methods nonetheless expose the growing scale of personality analysis online—and the dangers that come with it. On the internet, anything you do is like taking a personality quiz: Everywhere you click reveals something about you. And you’re not the only one who sees the results.

Seven people blocked by President Trump from seeing or interacting with his Twitter account filed a lawsuit against him, arguing that barring them from his popular social-media feed violates the First Amendment to the Constitution. The lawsuit, which raises interesting questions about what constitutes a public forum, as well as the boundaries of free-speech rights on the Web, comes as Trump continues to draw concern about his novel and erratic use of social media.

“President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President,” the lawsuit said. “In an effort to suppress dissent in this forum, Defendants have excluded — 'blocked' —Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it." The Twitter users, represented by the Knight First Amendment Institute at Columbia University, said that Trump's actions violated their Constitutional rights in several ways. They argued that the president has restricted their participation in a public forum, their ability to access official public statements made by him and their capacity to petition the government to air their grievances.

The Twitter users said they brought the lawsuit to seek a declaration that Trump's actions were unconstitutional and to get an injunction requiring President Trump to unblock their accounts and preventing him from blocking other people because of their views.

The House of Representatives adopted the Email Privacy Act in February to modernize the protections afforded electronic communications that would require obtaining a search warrant in almost every case. That proposal met resistance in the Senate in 2016 when Attorney General Jeff Sessions, then a senator from Alabama, sought to add a provision allowing law enforcement to skip the warrant requirement in emergency situations. Whether the legislation can get through the current Senate is an open question, and it is not clear whether President Donald Trump would sign off if the Justice Department opposes the bill. That may mean the Supreme Court will have to establish the broad parameters of digital privacy while Congress tries to deal with the intricacies of a world of electronic communication that continues to evolve rapidly.

Devices connected to the internet, from cellphones to watches to personal training trackers that facilitate our personal habits and communications, are a fact of daily life, and the Supreme Court will have to start drawing clear lines around what types of electronic information are — and are not — protected by the Fourth Amendment. Simply asserting that there is a right to privacy does not provide much help in determining how far that protection should extend in a digital world.

A new, nationally representative Pew Research Center survey of 4,248 US adults finds that 41% of Americans have been personally subjected to harassing behavior online, and an even larger share (66%) has witnessed these behaviors directed at others. In some cases, these experiences are limited to behaviors that can be ignored or shrugged off as a nuisance of online life, such as offensive name-calling or efforts to embarrass someone. But nearly one-in-five Americans (18%) have been subjected to particularly severe forms of harassment online, such as physical threats, harassment over a sustained period, sexual harassment or stalking.

Social media platforms are an especially fertile ground for online harassment, but these behaviors occur in a wide range of online venues. Frequently these behaviors target a personal or physical characteristic: 14% of Americans say they have been harassed online specifically because of their politics, while roughly one-in-ten have been targeted due to their physical appearance (9%), race or ethnicity (8%) or gender (8%). And although most people believe harassment is often facilitated by the anonymity that the internet provides, these experiences can involve acquaintances, friends or even family members.

A system for providing Digital Rights Management (DRM) protection to Web-based content is now an official recommendation from World Wide Web Consortium (W3C).

In 2013, the W3C, the industry body that oversees the development of Web standards, took the controversial decision to develop a system for integrating DRM into browsers. The Encrypted Media Extensions (EME) would offer a way for content producers to encrypt and protect audio and video content from within their plugin-free HTML-and-JavaScript applications. EME is not itself a DRM system. Rather, it is a specification that allows JavaScript applications to interact with DRM modules to handle things like encryption keys and decrypting the protected data. Microsoft, Google, and Adobe all have DRM modules that comply with the spec. The decision to bless the EME specification as a W3C standard was made last week in spite of substantial opposition from organizations such as the Electronic Frontier Foundation (EFF). Many opponents of this regard any attempt to impose such technical restrictions as an affront to the open Web. But HTML's inventor and W3C's director, Tim Berners-Lee, decided that the objections to EME were not sufficient to justify blocking the spec, giving it his, and hence the organization's, approval.

A group of news organizations will begin an effort to win the right to negotiate collectively with the big online platforms – Facebook and Google -- and will ask for a limited antitrust exemption from Congress in order to do so.

It’s an extreme measure with long odds. But the industry considers it worth a shot, given its view that Google and Facebook, regardless of their intentions, are posing a bigger threat economically than President Trump is (so far) with his rhetoric. That’s how David Chavern, the chief executive of the News Media Alliance, put it. The Alliance, the main newspaper industry trade group, is leading the effort to bargain as a group. But it has buy-in across the spectrum of its membership, bringing together competitors like The New York Times, The Wall Street Journal and The Washington Post, as well as scores of regional papers like The Star Tribune of Minneapolis, which face the gravest threats.

The small army of career antitrust officials is marching toward a great unknown. For one thing, the Justice Department officials still don’t have a boss who will have the final say on whether to approve or block AT&T’s purchase of Time Warner.

President Trump’s pick for assistant attorney general in charge of antitrust matters, Makan Delrahim, has been held up in a logjam of nominees in the Senate. And President Donald Trump himself, who said during the 2016 campaign that he opposed the deal, is another wild card. A senior administration official said that members of the White House were discussing how they might use their perch over the merger review as leverage over Time Warner’s news network, CNN. All of that has effectively put into limbo the most significant business deal before the Trump administration, a benchmark for business transactions going forward. In turn, that has cast a cloud over the business world, which is watching the lengthy regulatory process with intense interest.

In an age where fear of terrorism is high in the public consciousness, governments are likely to err on the side of safety. Over the past decade, the authorities have been pushing for – and getting – greater powers of surveillance than they have ever had, all in the name of national security. The downsides are not immediately obvious. After all, you might think you have nothing to hide. But most of us have perfectly legal secrets we’d rather someone else didn’t see. And although the chances of the authorities turning up to take you away in a black SUV on the basis of your WhatsApp messages are small in free societies, the chances of insurance companies raising your premiums are not.

Thanks in part to organizations like Free Press Action Fund, the movement to protect free expression online is strong — for proof look at the millions of people fighting to save Network Neutrality. But there’s an important problem that many free-expression advocates aren’t aware of because it usually lurks just beneath the sleek interfaces of our devices and software: DRM, or digital restrictions management.

DRM is a broad class of technologies that give the manufacturer of a digital good special control over the ways people use it. DRM has been around since the 1990s and has colonized personal computers, smartphones, game consoles, cars, tractors and more. DRM harms free expression most when it interferes with our use of media like videos, books and music. This DRM is the underlying technology that prevents you from copying Amazon Kindle e-books on to a Barnes and Noble Nook, from downloading a clip of a movie on Netflix for use in a documentary or from sampling a song from Spotify in a new piece of music. DRM exists primarily so that Hollywood studios, big music labels and streaming services like Netflix and Spotify can use it to artificially corral us into spending more money than we would if we were able to make full use of media.

[Zak Rogoff is the campaigns manager at the Free Software Foundation.]