July 2010

On July 15, the House Subcommittee on Technology and Innovation held a hearing to discuss cyber attack attribution—determining the identity or location of an attacker or an attacker's intermediary—and how attribution technologies can affect the anonymity and privacy of Internet users.

"We are well aware of the critical role that IT networks play in managing much of our day-to-day activity—from online banking to systems that make sure there is food on grocery store shelves," said Subcommittee Chairman David Wu (D-OR). "Our growing reliance on networks has made us more vulnerable to cyber attacks and has increased the potential for such attacks to have far-reaching and crippling effects. Now more than ever, we need to focus on the development of tools and technologies to prevent, detect, and respond to cyber attacks." As more and more of the Nation's infrastructure becomes dependent on the Internet, the potential impact of a successful cyber attack against the United States increases. Attribution technologies play an important role in limiting the effects of such crippling attacks. "However, given that the Internet is intended to be open and anonymous, the attribution of cyber attacks can be very difficult to achieve and should not be taken lightly," stated Wu. "As co-chair of the Global Internet Freedom Caucus here in the House, I am very concerned about the potential implications to privacy and Internet freedom posed by attribution technologies." Members and witnesses also discussed what research and development is needed to address capability gaps in attack attribution and who should be responsible for completing that R&D.

In comments filed at the Federal Communications Commission, the Media Access Project says affordable access to telecommunications services by low-income households plays a key role in achieving social justice goals. If not for the FCC's Low-Income Universal Service Fund programs Lifeline and Link-Up, many low-income households would be forced to forego basic telecommunications services to meet other needs, such as food and shelter.

MAP says eligibility criteria should be based on a reflection of meaningful but inclusive definitions of low-income and affordability. Studies show that even low-income families earning at or below 200 percent of the federal poverty level would not find basic telecommunications services affordable, and such findings provide strong support for increasing Lifeline eligibility from the current 135 percent threshold. Allowing residents of homeless shelters to be automatically eligible for the low-income programs would empower these individuals to change their economic situations, maintain contact with friends and family, and improve such residents' own sense of dignity and self-sufficiency.

MAP urges re-examining the one-per-household rule, which may have pernicious and unintended effects that dampen participation by eligible recipients who reside in homeless shelters and other group residences such as co-housing and multifamily housing. The rule also may require individuals receiving low-income assistance to choose between mobile services and more robust wireline broadband offerings, thereby denying such individuals the chance to take full advantage of opportunities for economic advancement, educational enrichment, civic participation, and social engagement.

The filing supports the expansion of the Low-Income program to support in better fashion individuals' adoption of broadband and mobile services, while emphasizing that Lifeline and Link-Up must continue to provide support for basic telephony and connectivity in instances where more advanced offerings are not available.

Draft rules for allocating Corporation for Public Broadcasting (CPB) Community Service Grants (CSGs) to public television stations recommend a new wave of incentives for mergers and other joint operations.

The incentives -- ranging from $500,000 to $1.5 million per station -- plus economic pressures from the recession, could give an extra push to CPB's ongoing matchmaking efforts. Four stations in the Los Angeles area, for example, have been discussing possible collaborations since January. Another proposed provision would require stations to apply noncommercial underwriting rules to website advertising if they want to count the revenues as "nonfederal financial support" in calculating their CSGs. Public television station leaders are now reviewing the recommendations from a 17-member CSG Review panel that's been working for eight months to update CPB's rules for dividing up the largest piece of its congressional appropriation.

[Commentary] Now that the initial hoopla attendant to the release of the Second Circuit's Fox decision has quieted down, let's take a gander at legal scenarios that might be in store for us. Most obviously is the prospect of further efforts by the Federal Communications Commission to convince some court, any court, that the Second Circuit panel's decision was wrong.

The options available to the FCC are:

1. Petition for rehearing to the Second Circuit panel. This would require the FCC to convince at least two of the panel's three judges that the decision they just made was wrong. Good luck with that.
2. Petition for rehearing en banc to the full Second Circuit. This would require the FCC to convince at least six of the ten active judges sitting on the Second Circuit that the whole court should take a look at the panel's decision. According to the Federal Rules of Appellate Procedure, en banc rehearings are generally "not favored" and "ordinarily will not be ordered". So good luck with that, too.
3. Petition for writ of certiorari to the U.S. Supreme Court. This is the classic "taking it to the next level", and is probably the best appellate option the FCC has. But the Supremes are under no obligation to review the case; in fact, the odds are that they won't agree to review any case (in the term ending in June, 2009, the Court reportedly denied 98.9% of the cert petitions filed). Still, the Court heard the Fox case back in 2009, so the Supremes obviously have some interest in it. If the FCC wants to keep the ball alive on the judicial side, Supreme Court review is likely its best bet.

Of course, the Commission could also just run up the white flag and forget about appealing any further. In that case, its indecency options would be reduced to two:

1. go back to the drawing board and attempt to develop an indecency enforcement policy that passes constitutional muster; or
2. accept the fact that indecency is not susceptible to government regulation.