January 2015

Let’s Make It Easier to Expand the Public Domain

[Commentary] An open secret among free culture fans is that it can be surprisingly hard to dedicate something to the public domain. Here's a simple idea for copyright reform: Why not fix that?

In the days when to get a copyright, you actually needed to fill out some paperwork, it was very easy to put something into the public domain. You didn't even have to do anything: public domain was the default. If you wanted something to be in the public domain, you just didn't file for a copyright. Now, however, works are copyrighted as soon as they are written down or recorded. There's no opt out. It would be easy to fix this. One way would be for Congress to eliminate termination for "public domain" licenses, and perhaps also for some kinds of public, royalty-free licenses like the Creative Commons licenses or the GPL. This path, rather than a full-on statutory acknowledgement of copyright abandonment, would allow authors to continue dual licensing while making a public domain license identical to the public domain in all other respects. It thus provides the benefits of a dedication to the public domain without taking away all of the benefits termination is supposed to provide (in the classic case, protecting artists who sign exploitative contracts with companies because they have so little bargaining power).

Testing, testing: A review session on COPPA and schools

We often get questions about how the Children’s Online Privacy Protection Act applies in the school setting.

The COPPA Rule gives parents control over what information “an operator of a Web site or online service” -- yes, that includes apps -- can collect from their kids under 13. Among other things, COPPA requires entities covered by the law to notify parents and get their approval before they collect, use, or disclose personal information from children. So how does COPPA apply to schools? Here’s the short answer: Schools -- which are usually part of the local government -- don’t fall within the legal definition of who’s covered by COPPA because they aren’t commercial “operators.” That said, schools sometimes allow, or even require, students to use sites and services that are covered by COPPA and which must provide notice and get verifiable parental consent. COPPA provides important protections for children’s personal information in the commercial space, and also recognizes the special role that schools may play in providing consent for the online collection of information from kids exclusively for educational services -- for example, online testing.

Smartwatches, fitness trackers may escape FDA regulations

Smartwatches are among the devices that appear to have escaped the regulatory glare of the Food and Drug Administration.

The FDA proposed new guidelines for general wellness products like exercise equipment and other low-risk devices that promote a healthy lifestyle. The FDA's draft guidance would loosen the oversight of general wellness products used for weight management, physical fitness, relaxation, mental acuity, self-esteem, sleep management, and sexual function, the agency said. "General wellness products can include exercise equipment, audio recordings, mobile apps, video games, and other products that are typically available from retail establishments," the agency wrote. This would seem to apply to smartwatches like the Apple Watch and fitness trackers like Fitbits, as some news reports have also pointed out.

Obama abandons telephone data spying reform proposal

President Barack Obama's Administration has quietly abandoned a proposal it had been considering to put raw US telephone call data collected by the National Security Agency under non-governmental control, several US security officials said.

Under the proposal floated by a Presidential review panel, telephone call "metadata" generated inside the United States, which NSA began collecting in bulk after the Sept. 11, 2001 attacks, could instead be collected and retained by an unspecified private third party. The Obama Administration has decided, however, that the option of having a private third party collect and retain the telephone metadata is unworkable for both legal and practical reasons. "I think that's accurate for right now," a senior US security official said.

Email privacy blitz unites Amazon, Grover Norquist

Major technology companies and advocacy groups are rushing to urge “speedy consideration” of legislation to add new legal protections to people’s e-mails.

Companies from Amazon to eBay to Facebook joined the Electronic Frontier Foundation, Grover Norquist's Americans for Tax Reform and dozens of others in sending letters demanding Congress finalize a bill to require that officials get a warrant before searching people’s old e-mails or other items stored digitally on the cloud. "Because of all its benefits, there is an extraordinary consensus around ... reform -- one unmatched by any other technology and privacy issue,” they wrote in a letter to leaders of the House and Senate Judiciary Committees. Passing a bill “sends a powerful message -- Congress can act swiftly on crucial, widely supported, bipartisan legislation,” they wrote. “Failure to enact reform sends an equally powerful message -- that privacy protections are lacking in law enforcement access to user information and that constitutional values are imperiled in a digital world.”

Defending encryption doesn’t mean opposing targeted surveillance

[Commentary] David Omand, the former head of British spy agency GCHQ, said that if companies such as Apple and Google don’t abandon their end-to-end encryption efforts, intelligence services will have to employ more “close access” surveillance on people they suspect of evil deeds.

This means physical observation, or bugging rooms, or hacking into phones and computers. According to Omand, such actions are “more targeted but in terms of intrusion into personal privacy -- collateral intrusion into privacy -- we are likely to end up in an ethically worse position than we were before.” No, you’re not. Surreptitiously getting a key to a suspect’s communications is no more ethical than conducting close personal surveillance -- but in the big picture, the latter is vastly preferable. The Internet’s opportunities for surveillance efficiency create the potential for intelligence agencies to become too powerful. End-to-end encryption adds friction and acts as a counterbalance. It doesn’t make targeted surveillance impossible -- Omand himself noted that client device hacking and physical surveillance render encryption moot -- but it does make it more resource-expensive, and therefore discourages its overuse.

On Connecting Americans to Emergency Personnel Whenever They Dial 911

By and large, our nation’s 911 system has been a tremendous success story. And much of that success is due to the simplicity and uniformity of that three-digit number. When your life or the life of a loved one is on the line, you shouldn’t have to think about whether you need to use a “9”, “8”, or “7” to get an outside line. You should be able to dial 911 and reach first responders who can assist you in your time of need.

Dialing 911 must always work. Many institutions have phone systems that aren’t configured to allow for direct 911 dialing. They need to fix them. And in this respect, I am disappointed that the place where I work, the Federal Communications Commission, has fallen short. At the FCC, we should be leading the way, not lagging behind, when it comes to public safety communications. Unfortunately, I don’t have the authority to solve the problem. That’s why both FCC Commissioner Michael O’Rielly and I have asked the Chairman of the FCC to fix it.

FCC Seeks Public Comment On Sixth Annual Report To Congress On State Collection And Distribution Of 911 And Enhanced 911 Fees And Charges

The Federal Communications Commission released the Sixth Annual Report to Congress on State Collection and Distribution of 911 and Enhanced 911 Fees and Charges (Report). The FCC formally solicits public comment on the Report, the information provided to the FCC by states and other reporting entities, and the reported expenditure of funds for Next Generation 911 services. The Report includes information regarding states and other reporting entities that have used any portion of collected 911 fees other than for the support of 911/E911 service.

Comments are due Feb 23, 2015, and reply comments are due March 24, 2015.

[PS Docket No. 09-14]

FCC Announces Changes In Office Of Chairman Wheeler

The Federal Communications Commission announced the appointment of Louisa Terrell as Advisor to Chairman Tom Wheeler. In addition, the FCC announced that Sagar Doshi will be leaving the Office of the Chairman.

She will lead a number of long-term planning initiatives and will serve as a liaison with federal agencies and stakeholders. Terrell was most recently Sen Cory Booker’s (D-NJ) Chief of Staff. Previously, she served as Facebook’s Director of Policy, focusing on wide range of issues including privacy and online safety, and at Yahoo! Terrell served in the White House as Special Assistant to the President for Legislative Affairs from 2009 to 2011.

Terrell was counsel for Senator Joseph R. Biden, Jr. on the Senate Judiciary Committee staff, and from 2006 to 2008 was the Senator’s Deputy Chief of Staff. Raised in Wilmington, Terrell earned her bachelor’s degree at Tufts University and her law degree at Boston College Law School, and served as a law clerk to the Honorable Francis J. Boyle, U.S. District Court for the District of Rhode Island.

China blocks VPN services that skirt online censorship

China is blocking virtual private network (VPN) services that let users skirt online censorship of popular websites such as Google and Facebook amid a wider crackdown on online information. The virtual private network provider Golden Frog wrote that the controls have hit a wide swath of VPN services. The popular provider Astrill informed its users that its VPN protocols for Apple mobile devices to access services such as Gmail have been blocked. Many foreigners in China as well as millions of Chinese depend on VPNs to connect to servers outside the country and access blocked information and Google-based business tools. VPNs encrypt and reroute Internet traffic so that censors can't tell what's being accessed.

Benton

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