Government & Communications

The US Federal Communications Commission says it has no written analysis of DDoS attacks that hit the commission's net neutrality comment system in May. In its response to a Freedom of Information Act (FoIA) request filed by Gizmodo, the FCC said its analysis of DDoS attacks "stemmed from real time observation and feedback by Commission IT staff and did not result in written documentation." Gizmodo had asked for a copy of any records related to the FCC analysis that concluded DDoS attacks had taken place.

Because there was no "written documentation," the FCC provided no documents in response to this portion of the Gizmodo FoIA request. The FCC also declined to release 209 pages of records, citing several exemptions to the FoIA law. For example, publication of documents related to "staffing decisions made by Commission supervisors, draft talking points, staff summaries of congressional letters, and policy suggestions from staff" could "harm the Commission’s deliberative processes," the FCC said. "Release of this information would chill deliberations within the Commission and impede the candid exchange of ideas."

The US Department of Defense (DoD) faces persistent fundamental change in its strategic and operating environments. This report suggests this reality is the product of the United States entering or being in the midst of a new, more competitive, post-US primacy environment. Post-primacy conditions promise far-reaching impacts on US national security and defense strategy. Consequently, there is an urgent requirement for DoD to examine and adapt how it develops strategy and describes, identifies, assesses, and communicates corporate-level risk. From a defense strategy and planning perspective, post-primacy has five basic defining characteristics including: Hyperconnectivity and the weaponization of information, disinformation, and disaffection.

In what is being billed as a bicameral effort, a group of Republican Sens and Reps—including Senate Judiciary Committee Chairman Chuck Grassley (R-IA), have introduced a bill, the Separation of Powers Restoration Act, that takes aim at the Chevron deference accorded federal agency expertise. “For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended. This has weakened our system of checks and balances and created a recipe for regulatory overreach," said Chairman Grassley of the bill. "The Constitution’s separation of powers makes clear that it is the responsibility of Congress, as the People’s representative, to make the law. And it’s the job of the courts—not the bureaucracy—to interpret the law. This bill helps to reassert those clear lines between the branches. By doing so, it makes the government more accountable to the People and takes a strong step toward reining in the regulators.”

The bill would only tweak the language in the US code on judicial review of agency actions, but it makes a big difference. The issue of Chevron has often come up regarding how the Federal Communications Commission exercises its regulatory authority. Chevron is the deference that has been accorded agencies—per Supreme Court precedent—to interpret vague statutes.

At every White House news briefing since June 29 — and many before, too — President Donald Trump's spokesmen have ordered a room full of smartphone-toting journalists not to film the session or even broadcast live audio. On July 19, one reporter defied the White House by streaming live sound of the briefing online. Ksenija Pavlovic, a former political science teaching fellow at Yale who founded a news site called Pavlovic Today, used the Periscope app to stream audio of July 19's briefing. She tweeted a link to the feed. The sound quality was poor, but deputy White House press secretary Sarah Huckabee Sanders could be heard introducing Director of Legislative Affairs Marc Short, who addressed reporters before Sanders took questions. Pavlovic's feed cut out after about 17 minutes, while Short was still talking, but she quickly resumed streaming and tweeted a new link that carried another 31 minutes.

On July 19, 2017, the Senate Commerce Committee held a hearing to examine the nominations of Ajit Pai, Jessica Rosenworcel, and Brendan Carr for seats on the Federal Communications Commission.

On March 7, President Donald Trump nominated Pai, the FCC’s current chairman, for a second five-year term ending June 30, 2021. Rosenworcel is nominated for a term that would end June 30, 2020. Carr, the current general counsel at the FCC, has actually been nominated for two terms, one expiring June 30, 2018 and the second ending June 30, 2023. Carr served as legal adviser to then-FCC Commissioner Pai for three years before Pai was named chairman and appointed Carr as general counsel.

Committee Chairman John Thune (R-SD) characterized the hearing as both an examination of the nominees and a FCC oversight hearing, “fulfilling a commitment I’ve made to hold regular, biannual oversight hearings of the Commission.” His opinions of the nominees: “In my view, the FCC will be in very good hands when all three of these nominees are confirmed.” He noted Chairman Pai’s efforts around transparency and FCC processes, network neutrality, and robocall prevention.

Sen Bill Nelson (D-FL), the committee’s ranking member, raised issues around all three nominations. Concerning Rosenworcel, he noted that she should not have been forced to step down from the FCC at the end of 2016 when the Senate failed to reconfirm her.

Sen. Nelson identified two concerns about Brendon Carr: 1) “two consecutive terms to which the Senate is being asked to confirm you would provide you with the longest single, initial period of service of any nominee to the FCC” and 2) “it is hard to recall a similar situation where someone was nominated to serve at the commission alongside, rather than to follow, their current boss.” He stressed that it is important to have commissioners who have independent voices and “ones who will fight for consumers and the public interest.” He later asked Carr to cite an issue that he and Chairman Pai disagree on – Carr failed to answer on more than one occasion. “Going forward, I’ll make my own decisions; I’ll call it the way I see it,” Carr said. “I think my record shows that I’m not a shrinking violet.” Sen. Nelson called that response “not confidence-building.”

Finally, Sen. Nelson congratulated Chairman Pai on some recent pro-consumer actions, but said, “[M]any view these most recent consumer protection actions as mere icing on what is otherwise an unpalatable cake. A cake constructed out of actions that eliminate competitive protections, that threaten dangerous industry consolidation, that make the Internet less free and less open, and that weaken critical consumer protections for those most vulnerable.”

Net Neutrality

Network neutrality and the FCC’s 2015 decision to classify broadband internet access service providers as telecommunications providers under Title II of the Communications Act were key issues for the hearing. In his opening remarks, Chairman Thune said,

“I am pleased that Chairman Pai has sought to hit the reset button on the 2015 Title II Order, because, as I have previously said, the FCC should do what is necessary to rebalance the agency’s regulatory posture under current law. I continue to believe, however, that the best way to provide long-term protections for the Internet is for Congress to pass bipartisan legislation. Two and a half years ago I put forward legislative principles and a draft bill to begin the conversation, and I stand ready and willing today to work toward finding a lasting legislative solution that will resolve the dispute over net neutrality once and for all.”

Two senators questioned the nominees about the impact of the Title II decision on broadband investment in the US. Sen. Mike Lee (R-UT) cited stats, offered by broadband providers, that investment has gone down. He took issue with a New York Times story that said investment had gone up since the 2015 order. He said that increase included foreign investment, some of which he said was spurred by the Title II disincentive to invest in the US, and that there was evidence that US infrastructure investment had declined precipitously.

On the other side was Sen. Ed Markey (D-MA) who said that almost half of the venture capital funds, or about $25 billion, invested since 2015 was in Internet-related businesses, with broadband providers investing $87 billion, the highest rate in a decade. Sen Markey said investment and job creation are high, so there is no problem that rolling back Title II or reviewing net neutrality rules would fix.

Both senators asked Chairman Pai for his take on their respective views, but the chairman's answer was cautious given that he has an open proceeding before him and comments on his proposal to roll back Title II and review the rules are still coming in. He said that evidence of decreased investment was one of his concerns, but that the FCC was testing that theory, as well as the opposite, as part of its due diligence.

E-Rate

While Rosenworcel, Carr and Chairman Pai all generally agreed on the importance of the FCC's E-rate program -- which makes broadband services more affordable for schools and libraries -- they initially refrained from an outright promise not to cut its funding. Sen. Ed Markey (D-Mass.) had to ask Rosenworcel a second time before she explicitly said she would not reduce the funding for E-rate. Neither Pai nor Carr would make that commitment.

Broadband Deployment

The three nominees were largely unanimous on measures to expedite rural broadband like “dig once” policies, which require installation of conduits for fiber-optic cable when preparing infrastructure such as roads. The policies aim to reduce cost and limit wait times for installing fiber in different municipalities.

“I think it would be helpful for ‘dig once’ policies and similar policies to be the law of the land,” Chairman Pai told Sen. Amy Klobuchar (D-MN).

“The agency, working with local jurisdictions, should try to come up with a model code — one that includes policies like ‘dig once,’” Rosenworcel said. She added that there should be incentives built in for local communities to adopt the model.

Senators also pressed the three on the need for accurate coverage maps so that subsidies issued to companies to build out their infrastructure are actually targeted to the right places.

“I would hope to get your commitment that the commission will work to ensure that mapping data used at the FCC accurately accounts for on-the-ground mobile coverage,” said Sen. Cory Gardner (R-CO). The nominees affirmed they are committed to working toward ensuring accurate data coverage moving forward.

First Amendment

Sen. Tom Udall (D-NM) pressed all of the nominees on their commitment to the First Amendment in light of the many statements President Trump has made disparaging outlets covering his Administration. Sen. Udall pointed to a story that the White House could use AT&T’s proposed acquisition of Time Warner as a way to punish CNN for its stories and suggested the Administration might want to reward Sinclair by approving Sinclair’s purchase of Tribune television stations. Each of the nominees pledged to speak out against violence or intimidation against journalists. Chairman Pai reiterated that the White House had not contacted him about retaliating against negative news stories and said he would not do so if asked. And he promised that the FCC would not be used to punish media companies or reward others and would be troubled by any attempt to pressure it to do so.

"I have not directly had any conversations with anyone in the administration with respect to media regulatory proceedings," Chairman Pai said. "To the best of my knowledge, no one on my staff or in the FCC has indirectly had any such conversations as well."

“I have consistently stated that I believe … that First Amendment freedoms, including the freedom of the press, are critical,” Pai added. “If I were ever asked by anyone in the administration to take retaliatory action, for instance, in a media regulatory proceeding, I would not do so.”

Conclusion

If all of the hearing’s nominees are confirmed by the full Senate, the FCC would have a 3-2 Republican majority. Senators on the committee have until July 21 to submit additional questions for the nominees who will be given time to reply in writing.

A group of Democratic Reps stepped up criticism of President Donald Trump, introducing a “no confidence” resolution that officially questions President Trump’s fitness to serve as commander in chief. It logs a laundry list of controversies swirling around the president — including his campaign’s many contacts with Russian officials, his refusal to release his taxes, his verbal attacks on women and the press, and his firing of FBI Director James Comey. Sponsored by Rep Steve Cohen (D-TN), the resolution has been endorsed by 23 more Democratic Reps, including Reps John Lewis (D-GA), John Yarmuth (D-KY), David Cicilline (D-RI), and Judy Chu (D-CA). President Trump’s track record, Rep Cohen said, exposes “a president that you wouldn’t want your children to look up to." "The way he talks about women, the press, the language he uses, the use of Twitter — you don’t want him to be a role model,” he said.

Sealed law enforcement requests to track Americans without a warrant through cellphone location records or Internet activity grew sevenfold in the past three years in the District, new information released by a federal judge shows. Details about the growth come as the US Supreme Court weighs whether to rein in such rapidly expanding demands. Legal experts said the disclosure appears to mark a first, and that neither the Justice Department nor private companies have previously made public such specific data about how often law enforcement agencies seek those court orders. The summary data gave counts of requests by year from 2008 through 2016 made in criminal cases handled by the Justice Department or US attorney’s office for the District. Details about each individual case, such as the name of a suspect or what records were sought, were not disclosed.

The requests were made under a 1986 statute that enables law enforcement agencies to obtain court orders requiring ­communication service providers to turn over records about individual customers. The orders do not apply to information about telephone calls, such as the time, date, duration and numbers dialed, which can be obtained in other ways. Instead, the requests seek individuals’ Internet connection records or cellphone tower records. Those records exclude the content of communications but can be highly valuable to investigators seeking to establish a history or pattern of movement, conduct or relationships. The information requests can include Internet browsing logs and activity; the time, date, size, sender and recipient of email, instant or social media messages, or other transaction records; as well as computer identification numbers and information about websites that a user accessed.

Apparently, Facebook, Alphabet's Google, Apple, and other major technology firms are largely absent from a debate over the renewal of a broad US internet surveillance law, weakening prospects for privacy reforms that would further protect customer data. While tech companies often lobby Washington on privacy issues, the major firms have been hesitant to enter a fray over a controversial portion of the Foreign Intelligence Surveillance Act (FISA), industry lobbyists, congressional aides and civil liberties advocates said. Among their concerns is that doing so could jeopardize a trans-Atlantic data transfer pact underpinning billions of dollars in trade in digital services, apparently.

Technology companies and privacy groups have for years complained about the part of FISA known as Section 702 that allows the US National Security Agency (NSA) to collect and analyze e-mails and other digital communications of foreigners living overseas. Though targeted at foreigners, the surveillance also collects data on an unknown number of Americans - some privacy advocates have suggested it could be millions - without a search warrant. Section 702 will expire at the end of 2017 unless the Republican-controlled Congress votes to reauthorize it. The White House, U.S. intelligence agencies and many Republican senators want to renew the law, which they consider vital to national security, without changes and make it permanent. A coalition of Democrats and libertarian-leaning conservatives prefer, however, to amend the law with more privacy safeguards.

After relentless attacks from President Donald Trump and his allies, a series of journalistic problems, and in the shadow of a possible merger, the network’s CEO, Jeff Zucker, is feeling the heat. “I think there’s a real chance that Zucker is being forced out,” said one employee. “That’s going to blow up this organization like nothing in the history of CNN.”

The US Department of Labor has raised concerns that Google’s strict confidentiality agreements have discouraged employees from speaking to the government about discrimination as part of a high-profile wage inequality investigation. Following a judge’s ruling that Google must hand over salary records and employee contact information to federal regulators investigating possible systemic pay disparities, a labor department official said the agency was worried that the technology corporation’s restrictive employee communication policies could impede the next phase of the inquiry.

“We have had employees during the course of the investigation express concerns about whether they are permitted by Google to talk to the government, because the company policy commits them to confidentiality,” Janet Herold, labor department regional solicitor, told the Guardian in an interview after the judge’s order. “When even a single employee expresses that, that means many more people are too concerned to make the call or have the conversation. The chilling effect is quite extreme.”