June 2014

The SCOTUS privacy ruling is accelerating lawmakers’ push for e-mail protections

Privacy-minded lawmakers are already capitalizing on an opening created by the Supreme Court when it unanimously ruled that police must have a warrant to search your cell phone.

Members of Congress who back stronger protections for e-mail and other electronic communications have begun citing the Court's landmark privacy endorsement, in an attempt to add momentum to their own privacy legislation.

The push to reform the Electronic Communications Privacy Act, a decades-old law that allows cops to read your e-mails if they've lain dormant for more than 180 days, has the support of the Justice Department and 220 cosponsors of a House bill known as the Email Privacy Act. The proposal would force police to get a warrant if they want to look at a suspect's e-mail. Today, that type of inspection requires little more than a subpoena.

"Even the Supreme Court of the United States, with an average age of 67, has moved ahead of Congress on technology issues," Rep Jared Polis (D-CO), one of the cosponsors, told the Washington Post. "The Court has put new wind in the sails of EPCA reform. This same standard [Fourth Amendment protections for cell phone contents] should apply to electronic communications."

The most important sentence in the Supreme Court's cell phone privacy ruling

The Supreme Court decision of Riley v. California isn't just a landmark ruling on cell phone privacy. It also represents a dramatic shift in the high court's attitude toward technology and privacy.

The Supreme Court's new attitude is best summarized by a single sentence in the opinion. The government had argued that searching a cell phone is no different from searching other items in a suspect's pocket. That, the court wrote, "is like saying a ride on horseback is materially indistinguishable from a flight to the moon." The government has typically pursued a simple legal strategy when faced with digital technologies.

First, find a precedent that gave the government access to information in the physical world.

Second, argue that the same principle should apply in the digital world, ignoring the fact that this will vastly expand the government's snooping power while eroding Americans' privacy. In all legal precedents, the government wants the courts to ignore the huge practical differences between the technologies that existed when old precedents were established and the technologies Americans use today.

This most recent ruling suggests that when these issues reach the nation's highest court, the justices won't be so credulous. They'll recognize that cell phone tracking is as different from a bank deposit slip as a ride on horseback is from a flight to the moon.

The Dangers of the Comcast Time Warner Merger

[Commentary] The proposed Comcast-Time Warner Cable merger has the potential of carrying considerable implications for New York City consumers.

Prior to rendering a decision, the Public Service Commission must thoughtfully deliberate the effects that the proposed merger would have on our community to ensure that the needs of our people are best served by any changes that would -- or could -- result. This deal would merge Comcast Corporation, which is not only the biggest cable company in the US; it is also the largest media provider in the world, with Time Warner Cable, the second largest cable company in the country.

This merger is extremely concerning to any reasonable person with respect to the effects of non-competition on Internet and cable customers, as it will likely diminish what is already minimal competition for high-speed Internet.

In addition, apart from cable and Internet customers, Time Warner Cable and Comcast already have the vast majority of power to set prices on transit and content providers -- some of whom are direct competitors of content providers owned by Comcast, which certainly sounds ripe for an abuse power by Comcast towards non-Comcast owned content providers.

Furthermore, if the merger were to succeed, the interconnection market -- where Comcast already has tremendous control -- would be undoubtedly altered, possibly facilitating Comcast to gain additional leverage in demanding higher payments from transit companies.

[James is New York City's elected Public Advocate and Chair of the Commission on Public Information and Communication (COPIC)]

Labor costs, capacity demands challenge middle mile growth

Although the growth in the middle mile has created opportunities for incumbent carriers, incumbent local exchange carriers (ILECs) and upstarts, it also has some inherent challenges -- such as labor costs and citing issues.

Not surprisingly, much of the demand for middle mile capacity is coming from wireless providers that are trying to keep up with escalating mobile broadband growth.

"We have confounding bandwidth challenges," said Scott Mispagel, vice president, network planning and engineering at Frontier Communications. "Everyone is using more bandwidth and we are adding quite a few new customers because of the markets we acquired from Verizon that were underpenetrated and underserved. This makes modeling difficult."

Frontier isn't the only carrier feeling pressure on the middle mile. According to Curt Frankenfeld, director, access strategy and development at CenturyLink, mobile broadband growth is forcing CenturyLink to upgrade its network to accommodate the demand.

"It forces us to modernize our network and gives us capital to do that." However, he noted that it's difficult for companies like CenturyLink to predict growth. "It creates stress on the middle mile. Cell providers don't necessarily want to go in that middle mile. It's a challenge because it almost becomes a custom middle mile for the cell providers."

The demand from mobile is so great that some are predicting that the middle mile fiber networks may soon be handling a lot of the mobile broadband traffic. Frankenfeld said that CenturyLink is seeing a big push for getting the traffic from mobile devices to the fixed network.

"In the next few years, we might see half of the mobile broadband traffic switched to our network. That means a rapid increase in bandwidth," Frankenfeld said.

Rep Cicilline: Internet can be ‘salvation’

High-speed broadband Internet can be vital to gay, lesbian and transgender people struggling to understand their sexuality and gender identity, Rep David Cicilline (D-RI) said.

Rep Cicilline, who is gay and one of the co-chairs of the congressional LGBT caucus, said that the Web can be especially important for people in countries where homosexuality is illegal. He urged Congress to do what it could to allow as many people as possible to get online.

“It has particularly important significance... in places where gay and lesbian and bisexual people -- transsexual people -- live in dangerous, repressive conditions,” he said. “Access to the Internet may be the salvation for these individuals to connect and understand that there are other places to be, other people who are experiencing the same kind of challenges.”

A recent report from the LGBT Technology Partnership and Institute called for the government to ensure that computers at schools and libraries allow people to search for LGBT information, make more of the nation’s airwaves available for public use and make sure that people’s privacy is protected online, among other recommendations.

Senate panel launches ‘clean’ satellite TV bill

The Senate Judiciary Committee renewed a “must-pass” satellite television law that avoided changes to the way businesses negotiate to send TV programs into people’s homes.

Members of the panel said those types of discussions are best left to a broader overhaul of the nation’s communication laws. However, their reluctance to make broader reforms now could run into opposition from other lawmakers who have pledged to use the opportunity to enact change.

“I know a number of other telecommunications issues have been raised relative to this bill, but they are more appropriately handled in the context of a comprehensive communication law overhaul which the Commerce Committee is considering,” said Sen Chuck Grassley (R-IA), the panel’s top Republican. “In the meantime, I look forward to working with the chairman and the Commerce Committee in ensuring that satellite consumers, in particular those in rural areas who need the law to get their television signals, will continue to see those signals.”

Rep Jason Chaffetz: Tech’s pace ‘scares a lot of members of Congress’

If you’re asking whether Washington has kept pace with technological innovation in Silicon Valley, Rep Jason Chaffetz (R-UT) has a blunt response: “Are you kidding?”

“There are very few people who understand or appreciate tech,” Rep Chaffetz said. “I think it scares a lot of members of Congress.”

Much of Congress’ connection to Silicon Valley is through fundraising only, added Rep Zoe Lofgren (D-CA), whose district routinely sees visiting lawmakers raising cash. “But that doesn’t mean they have any idea of what is going on in the tech world,” she added.

Washington’s slow understanding of technology and telecom development comes amid an increasingly active private-sector -- most notably, a pair of major mergers between AT&T and DirecTV and Comcast and Time Warner Cable. Lawmakers won’t have direct authority over whether those deals go through, but many legislators have still not been hesitant to weigh in.

“It concerns me because we need a competitive marketplace and you can mess that up in a variety of ways,” Rep Lofgren said. Rep Chaffetz added, “Some of the consolidation is healthy in the process.”

The broken Congress has given us a hyper-empowered judiciary

[Commentary] On June 25, the Supreme Court ruled against a company called Aereo in a case that while not super-important on its face has potentially significant implications for the entire cloud storage industry.

Back on June 19, in another ruling, the Court substantially restricted the eligibility of software innovations for patent monopolies. And on June 23, it made it harder for the Environmental Protection Agency to restrict greenhouse gas emissions.

These three rulings have two things in common. They're all very consequential for American public policy, and they all have nothing to do with the United States Constitution or the Bill of Rights.

Reactions to the Aereo ruling were varied, but absolutely nobody said "regardless of what the courts decide, Congress can always rewrite the relevant laws to sort out any problems." Because everyone takes for granted that in this day and age Congress can't rewrite the relevant laws. It can't clarify the legality of Aereo's repacking of over-the-air television broadcasts, it can't clarify the patent status of software, and it certainly can't clarify the scope of the EPA's authority over climate pollution. Congress can name post offices and not much more.

The judicial branch is simply not properly equipped to make broad evaluations of the policy merits of different approaches.

Aereo: Too clever by half gets you nowhere, fast

[Commentary] Since 10:17 a.m. on June 25, 2014, hundreds, if not thousands, of articles and blog posts have been written explaining, dissecting, and analyzing the Supreme Court’s decision in ABC v. Aereo.

The basic point I want to make is that Aereo is a broadcast policy and communications law opinion; it is not a copyright opinion. I am generally not a proponent of outcome-oriented decision-making. But in this case, Aereo’s technology and business model so clearly sought to bypass (or, at best, simply ignored) so many important policy issues that what amounts to a summary dismissal of the company’s theory of operation seems entirely warranted.

[Hurwitz is an assistant professor at the University of Nebraska College of Law, where he teaches telecommunications law, cyber law, law and economics, and other regulation-related subjects]

Why the Evening-News Anchor Is No Longer the Most Important Person on TV

Hosting the evening newscast turned Walter Cronkite, Dan Rather and Tom Brokaw into luminaries and national statesmen. ABC News has now declared that the person who leads that national institution no longer has to be the most important face on the screen.

This was a different decade, when the evening newscast was, along with something called a daily newspaper, a commanding source of the important news of the day. In this era of breaking tweets and smartphone alerts, however, the evening newscast has been weakened. A good chunk of people watch it, but another good chunk can’t even get home from work in time to tune it in.

These days, the best-known on-air personalities must instead be freed up to pursue original reporting and scoops that the network can “own” and blast across all of its shows, as well as digital properties.

onsider “CBS Evening News” anchor Scott Pelley’s recent trip to Jordan to cover refugees in Iraq and Syria -- a story that is likely to garner more attention and secure broader interest than his daily recital of the day’s headlines on the flagship show. In a memo to staffers about the shake-up, James Goldston, president of the ABC news division, took pains to look at the enterprise work done by both David Muir and Diane Sawyer. The importance of such efforts seems likely to increase.

Benton

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