Government & Communications

[Commentary] Donald Trump won the presidency by assuring voters he could do everything, and do it quickly. Much of his presidency so far has been spent covering up the fact that he can’t. And we keep learning a painful lesson: There’s not much we can do about it.

There’s a term for the sort of military strikes insurgent groups and underpowered forces employ: asymmetric warfare. As it turns out, Donald Trump was eminently prepared to launch an asymmetric warfare campaign against the institutions of American democracy, nowhere more effectively than against the media. His career — part salesman, part showman, part hustler — taught him a key lesson that, as it turns out, was as effective against the media as an IED could be against a military caravan: Never admit you’re wrong.

The proposed $13.7 billion merger of Amazon and Whole Foods is primed to set off a massive lobbying effort in Washington. Amazon has been moving into new markets and seeking ways to deliver products faster to customers, including a drone fleet for local deliveries, making the Whole Foods deal just the latest example of its growing ambitions. Some industry analysts say the deal should face a relatively smooth path to federal approval because Whole Foods only represents a 1.2 percent share of the $800 billion grocery market, while Amazon only has a 0.2 percent share. Under antitrust law, regulators examine whether a deal would eliminate competition and whether consumers, through price changes and other factors, would be harmed. Amazon, which serves as both a traditional retail outlet and a platform for other sellers, has metrics more complex than just any other store.

President Donald Trump blasted several publications after CNN retracted a story published recently tying a top Trump ally to a Russian investment bank. "So they caught Fake News CNN cold, but what about NBC, CBS & ABC?" President Trump tweeted. "What about the failing @nytimes & @washingtonpost? They are all Fake News!"

[Commentary] Sometimes the noise drowns out the good news. And it certainly is right now. It would be hard to fault the average American for thinking all that’s going on in Washington these days is high-drama hearings and partisan sniping. But amid the countdown clocks and cable news chatter, something important is happening: Congress is getting things done to help improve people’s lives.

Here in the House of Representatives, we can do more than one thing at a time. And the truth is, even while carrying out our oversight responsibilities, we’ve been delivering on our promises to the American people. We are passing important legislation. We are doing our job. You just may not have heard about it.

President Trump's relations with the media — never strong to begin with — have taken another sour turn with dwindling opportunities for on-camera engagement with the president's representatives. The White House has appeared to adopt a communications strategy of dealing primarily with its base of supporters, as witnessed by Trump's two interviews in the past week with Fox News Channel's morning show, "Fox & Friends." Board members of the White House Correspondents Association met with WH Press Secretary Sean Spicer and expressed the importance of Americans getting the chance to question leaders. "We believe it is in the interest of transparency to have regular televised briefings," said Jeff Mason, a Reuters correspondent and president of the White House reporters' group. "We aren't satisfied with the current situation and won't be until it changes." Shortly after the meeting, Spicer held an off-camera briefing. Television networks were allowed to record audio, but not air it live. “I want the president's voice to carry the day," he said.

[Commentary] The First Amendment protects our right to use social networks like Facebook and Twitter, the Supreme Court declared. The decision called social media “the modern public square” and “one of the most important places” for the exchange of views. The holding is a reminder of the enormous role such networks play in our speech, our access to information and, consequently, our democracy. But while the government cannot block people from social media, these private platforms can. Today, as social media sites are accused of spreading false news, influencing elections and allowing horrific speech, they may respond by increasing their policing of content. Clarity about their internal speech regulation is more important now than ever. The ways in which this newfound transparency is harnessed by the public could be as meaningful for online speech as any case decided in a United States court.

[Margot E. Kaminski is an assistant professor at the Ohio State University Moritz College of Law. Kate Klonick is a Ph.D. candidate at Yale Law School.]

Federal Communications Commission Chairman Ajit Pai unveiled new details about a reported cyberattack that came after comedian John Oliver urged his viewers to flood the agency with pro-network neutrality comments. In response to a series of questions about the incident from Sens Ron Wyden (D-OR) and Brian Schatz (D-HI), Chairman Pai said he was taking the issue seriously. “I agree that this disruption to [the Electronic Comment Filing System] by outside parties was a very serious matter,” Pai wrote in a letter. “As a result, my office immediately directed our Chief Information Officer (CIO) to take appropriate measures to secure the integrity of ECFS and to keep us apprised of the situation. The Commission's CIO has informed me that the FCC's response to the events sufficiently addressed the disruption, and that ECFS is continuing to collect all filed comments."

The ECFS slowed to a crawl after Oliver’s HBO show addressed the net neutrality proceeding in May, leading many to assume that the system was bogged down by an influx of public filings. But the next day, FCC CIO David Bray said the disruption was caused by a malicious distributed denial of service (DDoS) attack, a move designed to take down a site by flooding it with fake traffic. “I appreciate the FCC’s response,” Sen Wyden said. “I’m waiting to draw any final conclusions until the FBI weighs in. However, it is clear that FCC wasn’t ready for this attack. In the future, the agency should consider other ways to submit comments if its web portal fails again.”

Businesses leaders expressed surprise that the Department of Justice is appealing a case about when law enforcement should have access to data stored in other countries. The case pits the DOJ against Microsoft over an issue both sides have indicated requires a legislative fix: whether or not a domestic warrant can require a company to retrieve data stored on a foreign server.

Both chambers of Congress had taken up the issue with hearings involving the DOJ, industry and other stakeholders, and both chambers had expressed a sense of urgency to resolve the conflict. The DOJ filed paperwork for the appeal on June 23. The government is appealing lower court rulings that law enforcement cannot obtain data stored in a foreign nation with a warrant. Rather, the ruling says law enforcement needs to follow the foreign nation's policies for searching and seizing evidence. This has long been the case with physical evidence and the United States has several treaties known as Mutual Legal Assistance Treaties (MLATs) to provide a diplomatic apparatus to request evidence be retrieved and sent stateside.

Twenty years ago, on June 26, 1996, the US Supreme Court unanimously decided Reno v. American Civil Liberties Union, which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying strict scrutiny under the First Amendment, the Supreme Court concluded that unlike broadcasting – where the Federal Communications Commission’s indecency regulation has been upheld due to the unique characteristics of that medium – no content regulation with a justification of online child protection would be allowed. This means that there continues to be no content restrictions on what American internet users can send or receive.

Viewed in contemporary context, two lessons from Reno v. ACLU endure. First, as a constitutional law matter, there is a firewall for US government restrictions on any non-obscene online content. In turn, this virtually unfettered freedom has fueled the pervasiveness of the internet in our lives. Remember, Facebook and the world of online apps – which now exceed websites as the go-to sources online – did not even exist then. Mark Zuckerberg was only 13 years old when the court decision was released, and other app content pioneers such as Snapchat’s Evan Spiegel were still in elementary school.

This leads to the case’s second legacy, which is more implicit but also of great importance. Given the continuing inability to predict the speed and scale of internet development or changing consumer preferences, there seems to be a subtext in that government may find it difficult to develop broad prescriptive long-lasting approaches to internet regulation. The FCC favored this ex ante approach when crafting the Open Internet order under the Obama Administration. Under new FCC Chairman Ajit Pai, the agency seems to favor a revision that limits government oversight to the Federal Trade Commission’s traditional enforcement authority. As the FCC compiles its rulemaking record to justify this significant change in approach, it would not be surprising to see the Reno v. ACLU decision used to support a return of this light-touch regulatory framework.

The hasty effort in New York to pass a right-of-publicity bill ended—for now—recently after the state assembly sponsor pulled his bill and the senate appeared unwilling to advance its own version until the assembly acted. Media organizations had opposed the legislation: The National Press Photographers Association said the assembly bill would “unconstitutionally deprive” its members “of the right to exercise property and copyright interests in their still, filmed, and recorded images.” And a broad coalition—including the Reporters Committee for Freedom of the Press, the Media Law Resource Center, and the New York News Publishers Association—ran a full-page ad in the Albany Times-Union calling the bills “an attack on the First Amendment.”

But what’s the right of publicity, anyway? And why were media organizations so concerned about the bills? Those two questions are worth answering: Many states have some kind of publicity-related law on the books, and it’s likely that another New York bill will be introduced in the fall.