March 2013

BENTON'S COMMUNICATIONS-RELATED HEADLINES for WEDNESDAY, MARCH 20, 2013

Today’s packed agenda http://benton.org/calendar/2013-03-20/

GOVERNMENT & COMMUNICATIONS
   House Judiciary Wades Into Electronic Communications Privacy Act Reform
   Senate bill would require warrant for e-mail searches
   Six Months of Congress.gov [links to web]

JOURNALISM
   How a Misguided War Led to a Powerful Nonprofit Partnership - op-ed
   The Glory Days of American Journalism - editorial
   Talk replaces news on cable at 'surprising' rate - editorial

OWNERSHIP
   Supreme Court sides with bookseller in major copyright ruling, says resale is ok
   The Kirtsaeng Decision is a Victory for Ownership Rights - editorial
   Kirtsaeng Shows Why Trade Negotiators Don't Always Know What the Law Actually Is - analysis
   Comcast Completes NBCU Consolidation [links to web]
   Liberty Buys 27% Interest in Charter [links to web]
   T-Mobile USA Names New Board in Preparation for MetroPCS Merger [links to web]

CONTENT
   Good News Beats Bad on Social Networks [links to web]
   MIT to release documents about activist Swartz [links to web]
   Station Creator Looks to Simplify Online TV [links to web]

PRIVACY
   Google Glass Stirs Up Privacy Debate in DC [links to web]
   Sen. Pryor Talks Privacy, Food Guidelines to Ad Biz [links to web]

TELEVISION
   Verizon, Cablevision emerge as unlikely allies of cable-TV customers fed up with bundling
   Five companies that want to break up your cable bundle [links to web]
   C-SPAN Study Finds Almost Quarter of Cable/Satellite Subs Watch Weekly [links to web]

ELECTIONS AND MEDIA
   What’s Missing From the GOP’s Technology Strategy? - analysis [links to web]

INTERNET/BROADBAND
   Google Fiber is coming to Olathe, Kansas [links to web]
   What Would We Do If The Internet Crashed? [links to web]
   Senators may push online sales tax measure in budget [links to web]
   Direct Marketing Association Takes Issue With Marketplace Fairness Act [links to web]

CYBERSECURITY
   CISPA panic may be premature
   Cyberwar manual lays down rules for online attacks
   Mandiant: Chinese hacker unit attempted to clean up online presence

POLICYMAKERS
   Broadcasters Find Strong Ally in FCC’s Pai
   Genachowski Chief Counsel Exiting
   Former Rep. Bono Mack heads to K Street [links to web]

STORIES FROM ABROAD
   Which internet will India choose? - op-ed
   Backlash over proposed press law intensifies
   Britain’s Press Crackdown - editorial
   European Union Opens Up Access to Scientific Research [links to web]
   EU Reding: Apple Still Not Informing Customers Correctly About Warranty Rights in EU [links to web]

MORE ONLINE
   US Probes Microsoft, Partners Over Bribery Claims [links to web]
   Disconnect: why Andy Rubin and Android called it quits [links to web]
   The 49ers’ plan to build the greatest stadium Wi-Fi network of all time [links to web]
   Give online courses the old college try - editorial [links to web]
   Even Millennials Worry About Their Online Past [links to web]
   Look What Happens When You Give a Teenager a Tablet [links to web]

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GOVERNMENT & COMMUNICATIONS

ELECTRONIC COMMUNICATIONS PRIVACY REFORM ACT
[SOURCE: Broadcasting&Cable, AUTHOR: John Eggerton]
The House Judiciary Subcommittee on Subcommittee on Crime, Terrorism, Homeland Security and Investigations held a hearing on March 19 to consider updating the Electronic Communications Privacy Act (ECPA) to clarify the protections of e-mails, text, and information stored in the cloud from unreasonable searches and seizures by the government and in civil suits. But Subcommittee Chairman Jim Sensenbrenner (R-WI) made it clear it would have to be a balancing act between protecting privacy and allowing for law enforcement investigation of crime. He also said that would be a "tough nut to crack." (ECPA update legislation failed to materialize out of the last Congress.) "Americans should not have to choose between privacy and the Internet," he said. Chairman Sensenbrenner said he expected there would probably need to be a probable cause warrant standard for most communications, at least in criminal investigations. Rep. Bobby Scott (D-VA), ranking member of the subcommittee, said the Act was clearly outdated, pointing out that a single email could be subject to different legal standards for access depending on whether it was being stored or awaiting storage. He pointed out that service providers are providing both a communications service and a remote storage service and that there needed to be clarity on the definition of content. Full committee Chairman Bob Goodlatte (R-VA) said that updating the ECPA would be a top priority of Judiciary Committee.
benton.org/node/148287 | Broadcasting&Cable | Washington Post | The Verge | Reuters | B&C | ars technica | The Hill
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ECPA AMENDMENTS ACT
[SOURCE: The Hill, AUTHOR: Brendan Sasso]
Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Sen. Mike Lee (R-UT) introduced legislation that would require government officials to obtain a search warrant before accessing e-mails and other private online content. Under the Electronic Communications Privacy Act (ECPA) of 1986, police only need a subpoena, issued without a judge's approval, to read emails that have been opened or that are more than 180 days old. Privacy advocates argue the law is woefully out of date and that police should need a judge-approved search warrant, based on probable cause, to view private online messages. The Electronic Communications Privacy Act Amendments Act of 2013, would require the government to promptly notify someone if their private online information has been accessed. The government can obtain a court order to delay notification to protect an ongoing investigation. The bill would not exempt civil investigations, covering issues such as antitrust, financial and environmental rules, from the warrant requirement, although it would clarify that regulators can serve subpoenas directly to companies for their records. Privacy advocates, including the American Civil Liberties Union and the Center for Democracy & Technology, applauded Sens Leahy and Lee for introducing the legislation.
benton.org/node/148264 | Hill, The | LA Times
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JOURNALISM

NONPROFIT JOURNALISM
[SOURCE: Chronicle of Philanthropy, AUTHOR: Vincent Stehle]
[Commentary] A decade ago, America was hurtling toward an ill-conceived war in Iraq, justified by false claims that Saddam Hussein maintained weapons of mass destruction and that his regime had ties to Al Qaeda. The misguided war in Iraq was first and foremost a folly of American policy makers. But it was also a failure of American journalism. The sad fact is that most major news organizations reported the buildup toward war without adequate skepticism or scrutiny. But the nonprofit press wasn’t taken in by the Bush administration’s marketing and manipulations. Even as most of the journalism world struggles to be heard, the nonprofits are having more influence than ever as they collaborate to raise vital issues like war and peace and wealth and poverty in ways that reflect the public interest. The reinvigoration of the progressive press got its start when magazines like The Nation, The American Prospect and Mother Jones questioned accounts of weapons inspectors that called the administration’s assertions into question. And independent nonprofit broadcasters like Democracy Now, Free Speech TV, and Link TV, gave voice to the widespread opposition of political leaders in most nations and millions of protesters in the streets of America and around the world. [Stehle is executive director of Media Impact Funders]
benton.org/node/148239 | Chronicle of Philanthropy
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GLORY DAYS OF AMERICAN JOURNALISM
[SOURCE: Slate, AUTHOR: Matthew Yglesias]
[Commentary] American news media has never been in better shape. That’s just common sense. Almost anything you’d want to know about any subject is available at your fingertips. You don’t need to take my analysis of the Cyprus bank bailout crisis as the last word on the matter: You can quickly and easily find coverage from the New York Times, Wall Street Journal, Financial Times, and the Economist. Or if you don’t want to see your Cyprus news filtered through an America/British lens, you can check out the take of distinguished Greek economist Yanis Varoufakis on his blog. Reuters created an interactive feature that lets you try out different formulae for making the Cypriot haircut work. A pseudonymous London-based fund manager using the name Pawel Morski has offered vital, deeply informed coverage on Twitter and his WordPress site. You can watch a Bloomberg TV interview on the situation with native Cypriot and former Federal Reserve adviser Athanasios Orphanides at your leisure. Best of all, today’s media ecology lets you add depth and context to the news. Several sources on Twitter recommended to me a 2008 Perry Anderson article in the New York Review of Books about the broader sweep of post-independence Cypriot history. Paul Krugman reminds us of the larger issue of small island nations serving as offshore banking hubs and the dilemmas this poses for global financial regulation. He also offers a link to a lengthy IMF report on Cyprus’ economy. Yet essentially none of this bounty is reflected in the deeply pessimistic latest edition of the Pew Research Center’s annual State of the Media Report.
benton.org/node/148294 | Slate
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CABLE TALK
[SOURCE: USAToday, AUTHOR: Rem Rieder]
[Commentary] There was plenty of depressing if not very surprising news in the annual report on the state of the news media released this week by the Pew Research Center's Project for Excellence in Journalism. But this particular finding jumped out at me: the accelerated morphing of the cable news channels into talk cable. That's not a healthy development for a democracy, particularly one plagued as ours is by a toxic, highly partisan and deeply polarized political climate. And politics is the coin of the realm on cable. The report had two significant revelations on the cable front. First, coverage of live news events on CNN, Fox News Channel and MSNBC plummeted by 30% from 2007 to 2012, while interview segments — featuring all manner of savants, pundits and bloviators — jumped by 31%. The second: The distinction between daytime and prime time on cable has blurred. While prime time has long been dominated by talk, the earlier hours featured a healthy dose of actual news. No longer. The Pew report found that interview segments were equally prevalent in both time periods.
benton.org/node/148290 | USAToday
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OWNERSHIP

SCOTUS FIRST SALE DECISION
[SOURCE: paidContent.org, AUTHOR: Jeff John Roberts]
In a court ruling that has major implications for used good merchants across the country, the Supreme Court overturned a lower court decision that forbid a textbook seller from reselling textbooks that he had purchased overseas. In a 6-3 ruling, the court rejected publisher John Wiley’s interpretation of a rule known as the “first sale doctrine” which prevents copyright owners from exerting rights over a product once it has been purchased legally. This rule is what allows used book and music stores to sell used items without the copyright owners’ permission. In recent years, copyright owners facing a wave of imported goods have argued that “first sale” only applies to goods manufactured in the United States. Lower courts have till now sided with the copyright owners, producing considerable uncertainty about whether or not retailers can import and sell goods they legally purchase abroad. Writing for the majority, Justice Stephen Breyer rejected John Wiley’s argument that the phrase “lawfully made under this act” implied a geographic limitation. He also cited the concerns of library associations, used-book dealers, technology companies, consumer-goods retailers, and museums — all of which had urged the court to reject the restricted notion of “first sale.”
benton.org/node/148271 | paidContent.org | ars technica | B&C | The Hill
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KIRTSAENG DECISION
[SOURCE: Public Knowledge, AUTHOR: John Bergmayer]
[Commentary] The Supreme Court's decision in Kirtsaeng is a big win for the public, for ownership rights, and free trade. In a compellingly-argued 6-3 decision, the Court held that copyright owners do not have a perpetual right to control the resale of goods, even when they are manufactured overseas. Publishers argued for the right to control the distribution of copies of their books in perpetuity (or until any copyrights expired, whichever comes first). The effects would go far beyond the original importer. This would have been an absurd result. If you own something, you own it, and whether or not you can resell it, give it as a gift, or lend it out should not depend on the country it was made in. (In many cases, how would you even know?) Had the Court gone the other way, a used bookstore or a library with books on its shelves that were imported from the U.K. twenty years ago might be a copyright infringer. But thanks to the Court's decision, sales of used books, CDs, clothes or other items with copyrighted designs or logos, and anything with embedded software (such as cars, electronics, and appliances) can continue without legal uncertainty hanging over them.
benton.org/node/148270 | Public Knowledge
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KIRTSAENG AND TRADE AGREEMENTS
[SOURCE: Public Knowledge, AUTHOR: John Bergmayer]
[Commentary] The Kirtsaeng decision shows why we should not take the assertion that trade negotiators know what the law is and only take positions consistent with it too seriously. The law is sometimes uncertain and subject to dispute. We need courts to clarify what it means. Today, the Supreme Court clarified that the first sale doctrine applies to goods made overseas. It's important to note that the Court did not declare that henceforth, first sale applies in this way. Rather, a convincing majority of the Court held that it always has. Supap Kirtsaeng acted legally when he imported textbooks into the United States without the permission of John Wiley & Sons. To the extent that anyone at USTR or anywhere else at the time thought otherwise, they were wrong. This is how the legal system works. It is thus relevant that Justice Ginsburg writes, in dissenting from the majority opinion, that "[u]nlike the Court's holding, my position is consistent with the stance the United States has taken in international trade negotiations." But trade negotiators do not get to decide what the law is: Congress passes statutes and courts interpret them. The USTR is not part of this workflow. If trade negotiators have ever taken positions that are inconsistent with Kirtsaeng then those positions are now, and always have been contrary to US law. I would make a similar argument even if Kirtsaeng came out the other way: trade negotiators should not try to anticipate how contentious legal battles will turn out. They should steer clear of these areas entirely and allow the system to do its work.
benton.org/node/148280 | Public Knowledge
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TELEVISION

UNBUNDLING CABLE
[SOURCE: Washington Post, AUTHOR: Cecilia Kang]
Cable viewers have long complained about paying ever-higher bills for hundreds of channels they don’t want to watch. Now, in a twist, some cable companies are beginning to agree. Verizon and Cablevision are publicly pressing media companies that own the programming to stop pushing them to distribute unwanted channels and instead offer cable bundles based on what viewers actually watch. If successful, the efforts could lead to cheaper options for consumers and a sea-change in how the television industry has done business — and protected its profits — for more than two decades. Such change has become necessary, Cablevision and other cable companies argue, as more Americans cut their cable cord in favor of cheaper Web-based video provided by Netflix, Apple and Amazon.com. Today, 5 million households get their television solely from the Internet, up from 2 million in 2007, according to Nielsen. But Hollywood and media companies have said that breaking up the bundles would lead to the demise of smaller niche programming that does not have mass market appeal. Analysts say it is too early to tell whether the spat between cable firms and their media partners will lead to lower bills or the long-sought goal of consumer advocates: a la carte TV. Even the federal government has failed in its efforts to persuade the television industry to charge viewers only for what they watch.
benton.org/node/148311 | Washington Post
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CYBERSECURITY

CISPA PANIC
[SOURCE: Politico, AUTHOR: Tony Romm]
Washington technology and consumer advocates are aggressively carping that a revived House cybersecurity bill remains a toxic, nauseating, no-good threat to the future of the Internet. The only catch: It’s probably not that much of a threat at all. Even if there are serious, widespread privacy concerns with the Cyber Intelligence Sharing and Protection Act (CISPA), the proposal is virtually guaranteed to undergo a significant overhaul before it can become law. The controversial measure by Reps. Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD) could clear the House as written, but if that’s the case it’s bound to face the same stiff Senate resistance that killed it in 2012. And without earnest revision, CISPA could just as easily trigger yet another veto threat from the Obama administration in 2013. However, the leaders for the American Civil Liberties Union, the Competitive Enterprise Institute, the Center for Democracy and Technology, and scores of other opponents are still mounting an almost hyperbolic messaging offensive this week — a strategy they insist is necessary to set the parameters of the coming cybersecurity debate.
benton.org/node/148305 | Politico
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THE TALLINN MANUAL
[SOURCE: Associated Press, AUTHOR: Raphael Satter]
A handbook due to be published later this week applies the venerable practice of international law to the world of electronic warfare in an effort to show how hospitals, civilians, and neutral nations can be protected in an information age fight. The Tallinn Manual — named for the Estonian capital where it was compiled — was created at the behest of the NATO Cooperative Cyber Defense Center of Excellence, a NATO think tank. It takes existing rules on battlefield behavior — such as the 1949 Geneva Convention — to the Internet, occasionally in creative or unexpected ways. The manual's central premise is that war doesn't stop being war just because it happens online. Hacking a dam's controls to release its reservoir into a river valley can have the same effect as breaching it with explosives, its authors argue. Legally speaking, a cyberattack which sparks a fire at a military base is indistinguishable from an attack that uses an incendiary shell.
benton.org/node/148262 | Associated Press
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CHINES HACKERS
[SOURCE: The Hill, AUTHOR: Jennifer Martinez]
An elite unit of Chinese hackers that allegedly waged a massive cyber-espionage campaign against U.S. companies has attempted to clean up their online presence after being identified in a public report by information security firm Mandiant. Since the release of the report last month, top administration officials have called on China to take urgent steps to crack down on hacker attacks and curb the siphoning of intellectual property from American companies. After outing the hacker unit in its report, Mandiant executives said that the Chinese hackers have taken steps to clean up their tracks and have largely stopped their activity.
benton.org/node/148293 | Hill, The
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POLICYMAKERS

FCC COMMISSIONER PAI
[SOURCE: TVNewsCheck, AUTHOR: Doug Halonen, Harry Jessell]
A Q&A with the FCC’s Ajit Pai. If Federal Communications Commission member Ajit Pai didn’t exist, broadcasters would be trying to invent him. That’s because ever since Commissioner Pai stepped in to fill a seat at the agency last May, broadcasters have had a sympathetic set of ears at the agency. Commissioner Pai, who grew up in small-town Kansas, has been scoring major points with broadcasters with his spirited defense of joint sales and shared services agreements that have allowed TV stations to operate two stations in small markets — agreements that the FCC’s Democratic majority has been threatening to unwind. He’s also launched a campaign to try to revive AM radio—an initiative he will be championing at the NAB’s annual convention in Las Vegas next month. “From Day 1 at the FCC, it was clear that Commissioner Pai is sincere, engaging and razor-sharp smart,” says Dennis Wharton, an NAB spokesman. “He’s also unafraid to challenge false claims about broadcasting, as his support for JSAs and SSAs demonstrates.”
benton.org/node/148309 | TVNewsCheck
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SHERRESE SMITH
[SOURCE: Multichannel News, AUTHOR: John Eggerton]
Sherrese Smith, the last of Federal Communications Commission Chairman Julius Genachowski's original team of legal advisors is leaving, the chairman will announce March 20 in advance of its monthly meeting. Smith has been chief counsel and senior legal adviser to the chairman. Smith had been senior counsel when she was named chief counsel in January 2012, succeeding Zach Katz, who moved to chief of staff with the exit of Eddie Lazarus. Smith was named senior counsel in 2011 at the same time Katz was promoted to chief counsel, replacing Rick Kaplan, who headed the Wireless Bureau before exiting to join the National Association of Broadcasters. Before being named to the inaugural class of Genachowski advisers in June 2009, Smith had been VP and general counsel at Washington Post Digital and before that was a member of Arnold and Porter's Intellectual Property Group.
benton.org/node/148307 | Multichannel News
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STORIES FROM ABROAD

INTERNET AND INDIA
[SOURCE: Times of India, AUTHOR: Eric Schmidt]
[Commentary] We are living in an unparalleled time for technological progress. In 10 years, it will be almost impossible to describe to any child in India what life was like before the internet. Only about two billion of the world's seven billion people have an internet connection, and I believe the remaining five billion will get one in the next decade. Almost one billion of them will come online in India. They will have different needs from people online today and expect different things from the internet. Now is the moment for India to decide what kind of internet it wants for them: an open internet that benefits all or a highly regulated one that inhibits innovation. India accepts that investing in the internet is as crucial as investing in roads or telephone lines. The bigger question is, which internet will it invest in, an open or closed one? If people in power are overly pessimistic about the internet, their pessimism will be self-fulfilling. In seeking to control all of it — including the good parts that are working well — they'll stop good Indians from doing great things. Instead, they should focus on giving every Indian the best shot at using the internet to make his or her country even better.
[Schmidt is Google’s Executive Chairman]
benton.org/node/148282 | Times of India
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BACKLASH TO UK PROPOSAL
[SOURCE: Financial Times, AUTHOR: Robert Cookson, Elizabeth Rigby]
A backlash against the UK’s new system of press regulation intensified as media groups debated whether to sign up to a new watchdog or mount a rebellion. Lawyers said the government plans contained flaws and were vulnerable to legal challenge, as some newspaper groups hinted they may shun the state-sanctioned watchdog and instead set up their own regulator. Benedict Brogan, the Daily Telegraph’s deputy editor, said in an article on Tuesday that the biggest groups appeared to be drifting towards setting up a breakaway watchdog. Daily Mail Group, Telegraph Media Group and News International have said they are taking “high-level legal advice” over the government’s plans to create a press regulatory system backed by legislation. Local newspapers, which were not part of the phone-hacking scandal that prompted the regulatory overhaul, revealed for the first time that they were “fiercely opposed” to the government plans. Media groups are worried about the cost of signing up to the new regulator, which will be funded by its members and will offer a free arbitration service to the public. They fear they will be inundated with complaints that are frivolous but expensive to deal with.
benton.org/node/148314 | Financial Times | NYTimes | WSJ
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BRITAIN’S PRESS CRACKDOWN
[SOURCE: New York Times, AUTHOR: Editorial staff]
[Commentary] In an attempt to rein in its reckless tabloid newspapers, Britain’s three main political parties this week agreed to impose unwieldy regulations on the news media that would chill free speech and threaten the survival of small publishers and Internet sites. The parties agreed to replace the newspaper industry’s self-regulating body with an independent agency that could levy fines of up to £1 million, or $1.5 million, order editors to issue prominent corrections and provide arbitration for people who believed they had been wronged by the press. Publishers who do not agree to subject themselves to the jurisdiction of this body — and many have already said they will not — could still take their chances in court but could be hit with higher, punitive fines if they were found liable. Prime Minister David Cameron has argued that the plan will keep the press free because it will be enacted through a royal charter, which is technically not a law because it is formally issued by the queen, not Parliament. But that is a distinction largely without substance. In reality the proposal would effectively create a system of government regulation of Britain’s vibrant free press, something that has not happened since 1695, when licensing of newspapers was abolished. The kind of press regulations proposed by British politicians would do more harm than good because an unfettered press is essential to democracy.
benton.org/node/148312 | New York Times
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