June 2015

In Pushing for Revised Surveillance Program, President Obama Strikes His Own Balance

For more than six years, President Barack Obama has directed his national security team to chase terrorists around the globe by scooping up vast amounts of telephone records with a program that was conceived and put in place by his predecessor after the Sept. 11, 2001, attacks. Now, after successfully badgering Congress into reauthorizing the program, with new safeguards the President says will protect privacy, President Obama has left little question that he owns it.

The new surveillance program created by the USA Freedom Act will end more than a decade of bulk collection of telephone records by the National Security Agency. But it will make records already held by telephone companies available for broad searches by government officials with a court order. “The reforms that have now been enacted are exactly the reforms the president called for over a year and a half ago,” said Lisa Monaco, the president’s top counterterrorism adviser. She called the bill the product of a “robust public debate” and said the White House was “gratified that the Senate finally passed it.” The President is trying to balance national security and civil liberties to put into practice the kind of equilibrium he has talked about since he was in the Senate, when he expressed support for surveillance programs but also vowed to rein in what he called government overreach.

Phone Carriers Tight-Lipped On How They Will Comply With New Surveillance Law

The new USA Freedom Act prevents the bulk collection of phone call metadata by the NSA. AT&T, Verizon and other carriers will keep phone call metadata on their servers, and give it to the NSA if subpoenaed by the Foreign Intelligence Surveillance Court, often called the FISA Court. To be clear, phone companies do not have a new mandate to collect or store metadata — the numbers called and time and length of those calls.

Jennifer Granick, Director of Civil Liberties at Stanford University's Center for Internet and Society, says, "The phone companies may already have data retention obligations under the Communications Act, but there's no additional obligation as a result of USA Freedom having passed." What's new under the law is an obligation to provide a "two-hop function," identifying people two steps — or "hops" — removed from the target. With court approval, the NSA gets the phone records of a targeted individual; then every number in contact with that individual; and then every number in contact with that wider circle. "Now the phone companies will be the place where that analysis of who's in contact with whom is taking place," Granick says. The phone companies may develop their own system for retrieving the data, or NSA could create the software code for them. The bill doesn't specify.

Websurfing and the Wiretap Act

[Commentary] The federal Wiretap Act is the major privacy law that protects privacy in communications. The Wiretap Act prohibits intercepting the contents of a communication without the consent of at least one of the parties to the communication. As enacted in 1968, the law was intended primarily to regulate wiretapping of telephone calls. In that context, the law is pretty clear: The law prohibits using a wiretapping device to tap the phone line without the consent of one of the participants on the call. But times have changed.

In 1986, Congress extended the Wiretap Act to the Internet. Applying the Wiretap Act to the Internet can be tricky because the Internet enables person-to-computer communications. The switch from person-to-person telephone communications to person-to-computer Internet communications creates two tricky interpretive problems. First, how do you identify “contents” of person-to-computer communications? And second, when is a computer a “party to the communication”?

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]

California Senate OKs requiring warrants to search smartphones, tablets

The California State Senate approved a bill that would require law enforcement in California to obtain a search warrant or wiretap order before searching a person’s smartphone, laptop or other electronic device or accessing information stored on remote servers.

The bill, by Sen. Mark Leno (D-San Francisco), also would protect locational information stored on smartphones and other devices unless police officers show probable cause to a judge. The measure is supported by tech companies including Apple, Facebook, Google and Twitter as a way to clarify what their obligation is regarding providing information to law enforcement. The Senate voted unanimously to approve the bill. The bill is opposed by the California District Attorneys Assn., the California Police Chiefs Assn. and the California State Sheriffs Assn. as unnecessary and a burden to investigations.

Can Lifeline close the digital divide?

[Commentary] The federal government has been offering subsidies to help the poor afford phone service since the court-ordered breakup of the Ma Bell system in the mid-1980s. Now the chairman of the Federal Communications Commission wants to give low-income Americans a new option by letting them use the Lifeline subsidy for high-speed Internet connections instead of a home phone line or a mobile phone account. The change is worth making.

But as the FCC admits, it's quixotic to think that merely providing a discount on broadband will close the digital divide. Less than half of the households with incomes less than $25,000 a year have broadband at home, and although affordability is a factor, consumer advocates and Internet service providers say that the cost of computers (or smartphones) and the lack of digital skills are at least as important. There's also the question of whether a broadband connection that can't necessarily make 911 calls amounts to a Lifeline service. The FCC is aware of these issues, having recently completed a series of pilot projects that offered discounted broadband to low-income consumers. And with new anti-fraud measures in place, it makes sense to allow the current Lifeline discount to be applied to broadband and see if it brings more low-income families online. If not, it will be time for Congress to find a better way than Lifeline to close the digital divide.

FCC Chief Tom Wheeler Is Five Sixths of a Superhero

[Commentary] The last best hope to stop Big Money's rout of American democracy is a former trade group lobbyist who's reluctant to stretch his spandex superhero suit too thin.

The Federal Communication Commission already possesses the power to rescue us from dark money. Tomorrow morning, says Michael J. Copps, who was a FCC commissioner for 10 years, FCC Chairman Tom Wheeler could say: We have had on the books since the original Telecommunications Act of 1934 a requirement that the sponsors of ads, including political ads, must be identified, and we're going to start enforcing it. We don't have to wait for the President to send a disclosure bill to Congress that won't go anywhere; we don't have to wait for Congress to bite the hand that feeds it. The FCC can do that rulemaking on its own, and after a 120-day public comment period, if you conceal who's paying for those ads, you'll get nailed. Enforcing that provision is "at the top of my bucket list," says Copps, "and I'm looking for company, Tom." "Maybe you have noticed," he said a couple of weeks ago, when asked if the FCC will use the authority it already has to require disclosure of the secret sponsors of political ads, "we have a long list of telecommunications-related decisions that we are dealing with right now, and that will be our focus." He punted to the Hill: "Well, if the Congress acts, then we will clearly follow the mandate of Congress." But as he had to know, just two days before he said that, the House Communications and Technology subcommittee, on a party-line vote, shot down a law that would have forced dark money into the light. Five out of six ain't bad. But net neutrality, privacy and the other issues on Wheeler's plate, important as they are, won't rescue democracy from the rot of corruption. Maybe another outpouring of public outrage can get him to reach for the spandex one more time. Paging John Oliver?

[Kaplan is a USC Annenberg professor and director of the Norman Lear Center]

Dish Network in Merger Talks With T-Mobile US

Apparently, Dish Network is in talks to merge with T-Mobile USA, a deal that would accelerate a wave of consolidation across the US media and communications industries.

The two sides are in close agreement about what the combined company would look like, with Dish Chief Executive Charlie Ergen becoming the company’s chairman and his T-Mobile counterpart, John Legere, serving as the combined company’s CEO. Tougher questions about a purchase price and the mix of cash and stock that would be used to pay for a deal remain unresolved. A Dish deal with T-Mobile would combine the country’s second-largest satellite TV operator with its fourth-largest wireless carrier. It would also address major strategic issues for both sides. Dish lacks the robust broadband Internet service that cable companies can lean on to offset a declining TV business. It also has amassed billions of dollars of wireless licenses but hasn’t built the cellular network needed to put them to use. T-Mobile’s wireless service would help address both needs. T-Mobile, meanwhile, has added subscribers at an industry-leading rate over the past several quarters, but still is dwarfed by much bigger rivals AT&T and Verizon. Dish’s wireless licenses would give T-Mobile a path to boosting the capacity of its network.

Liberty’s John Malone Eyes Content Consolidation

Billionaire John Malone, fresh from helping engineer a mammoth cable-TV merger, is examining ways to consolidate studios and smaller channels to better compete as the traditional TV bundle begins to unravel.

He said Lions Gate Entertainment, a studio where he is a director and owns roughly 3%, could play a significant role in any roll-up of companies that produce or distribute programming. Indeed, he believes a union between Lions Gate and Starz, the premium cable channel in which he has a big voting stake, could be in the mix. Asked if TV channel owners including Scripps Networks Interactive or AMC Networks could be among the potential targets for Lions Gate, Malone said they could, but said coming to terms with the controlling shareholders in those companies could be difficult.

Spotify Wants Listeners to Break Down Music Barriers

[Commentary] Spotify, which has just introduced a new version of its app, says that because online streaming services let us call up and listen to anything we like, and because its curated playlists push us toward new stuff, we are all increasingly escaping rigid genres.

Spotify says that its curated playlists, like this one for runners, mix and match songs from many genres. That trend looks sure to accelerate as streaming becomes ubiquitous. Spotify exposes listeners to one new artist every day. That is making listeners less beholden to music of certain styles and eras. Instead, many of us will try anything, just because we can easily sample it online. Spotify is betting that fixed musical genres will fade away. In its new version rolling out to iPhone users, the company has expanded its effort to program for moods and activities rather than merely certain kinds of musical tastes.

Back from the dead: US officials to ask secret court to revive NSA surveillance

The Obama Administration intends to use part of a law banning the bulk collection of US phone records to temporarily restart the bulk collection of US phone records. US officials confirmed that in the coming days they will ask a secret surveillance court to revive the program -- deemed illegal by a federal appeals court -- all in the name of “transitioning” the domestic surveillance effort to the telephone companies that generate the so-called “call detail records” the government seeks to access. The unconventional and unexpected legal circumstance depends on a section of the USA Freedom Act, which President Barack Obama signed into law on June 2, that provides a six-month grace period to prepare the surveillance and legal bureaucracies for a world in which the National Security Agency is no longer the repository of bulk US phone metadata. During that time, the act’s ban on bulk collection will not yet take effect. But the NSA stopped its 14-year-old collection of US phone records at 8pm ET on May 31, when provisions of the Patriot Act that authorized it until that point lapsed.

The government will argue it needs to restart the program in order to end it. US officials did not say if the secret Fisa court will hear arguments from the newly established “amicus”, who will be empowered by the Freedom Act to contest the government’s contentions before the previously non-adversarial court. The Freedom Act permits the amicus to argue before the court in novel circumstances. “We are taking the appropriate steps to obtain a court order reauthorizing the program. If such an order is granted, we’ll make an appropriate announcement at that time as we have with respect to past renewal applications,” said Marc Raimondi, the Justice Department’s national security spokesman, told the Guardian on Wednesday.

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