June 2015

The real winners in the fight over government surveillance

After the Senate passed legislation aimed at reforming a program that collected data about the phone calls of millions of Americans, Senate Majority Leader Mitch McConnell (R-KY) quoted an Associated Press headline calling the bill a "victory for Edward Snowden" and added his own twist: "It is also a resounding victory for those currently plotting attacks against the homeland," he said. Supporters of the legislation would dispute that argument, pointing instead to the Constitution or the public at large. But there's another group that won big: Tech companies.

"The Internet industry's support for surveillance reform was critical -- and exceptional to the extent that until the Snowden revelations, although they had sometimes gotten involved in law enforcement, they'd steered clear of national security since it was such a sensitive topic," said Kevin Bankston, the executive director of New America's Open Technology Institute. A slew of major tech companies were tied to National Security Agency surveillance in some of the first reports sourced to former government contractor Edward Snowden. Reporting and documents released in June 2013 revealed that many of the biggest names in tech, including Google, Facebook, Apple and Microsoft, were part of a program called PRISM that let the spy agency tap into services -- accessing things like chats, documents and e-mails. Other revelations showed how the agency evaded security measures and infiltrated the links between some companies' data centers. And with the passage of the USA Freedom Act, tech companies are claiming their first significant policy win.

The NSA's Bulk Collection Is Over, but Google and Facebook Are Still in the Data Business

Don't be fooled: Congress may have finally passed the bill reining in the National Security Agency's bulk-surveillance programs, but your data is still being collected on the Internet. Lost in the debate over the NSA is the fact that companies like Google and Facebook continue to vacuum up vast troves of consumer data and use it for marketing. The private-sector tech companies that run the social networks and e-mail services Americans use every day are relatively opaque when it comes to their data-collection and retention policies, which are engineered not to preserve national security but to bolster the companies' bottom lines.

Critics say the consumer data that private companies collect can paint as detailed a picture of an individual as the metadata that got caught up in the NSA's dragnets. Companies like Google and Facebook comb through customers' usage statistics in order to precisely tailor marketing to their users, a valuable service that advertisers pay the companies dearly to access. "What both types of information collection show is that metadata -- data about data -- can in many cases be more revelatory than content," said Gabe Rottman, legislative counsel at the American Civil Liberties Union. "You see that given the granularity with which private data collection can discern very intimate details about your life." And there's no guarantee what is collected by the private sector will stay with the private sector. "The government has a huge number of tools to get data from private companies," said Chris Calabrese, senior policy director at the Center for Democracy and Technology. "That's obviously a very difficult situation for companies to be in."

The War Over NSA Spying Is Just Beginning

Now that Congress has passed the USA Freedom Act, a surveillance overhaul bill that will shutter the National Security Agency's bulk gathering of US call data -- and doing so while shutting down attempts from the Senate Majority Mitch McConnell to weaken it -- reform-minded legislators are emboldened. But while reformers hope the victory is an appetizer to a multiple-course meal to rein in the NSA, security hawks -- many of them Republicans Reps vying for the White House -- hope to halt the post-Snowden momentum behind surveillance reform. And some already are talking about unraveling the Freedom Act.

"What you are seeing on the floor of the Senate is just the beginning," said Sen Ron Wyden (D-OR), a civil-liberties stalwart in the upper chamber who serves on the intelligence committee and has worked for more than a decade to reform government surveillance. "There is a lot more to do when -- in effect -- you can ensure you protect the country's safety without sacrificing our liberty." Sen Wyden used the Freedom Act's passage to call for additional intelligence-gathering reforms that he has long advocated, such as closing the so-called "backdoor search loophole" that allows US spies to "incidentally" and warrantlessly sweep up the email and phone communications -- including some content -- of Americans who correspond with foreigners. He added he plans to move quickly on reworking Section 702 of the Foreign Intelligence Surveillance Act, before Congress is up backed up against its renewal deadline in 2017

FCC Updates EAS Standards

The Federal Communications Commission has established new standards for future tests of the Emergency Alert System (EAS) -- FEMA has said it plans another test “in the near future,” says the FCC -- or for use in an actual emergency. The FCC will give participants, which include broadcasters and multichannel video programming distributors, up to 12 months to comply with location and event code standards, as National Cable & Telecommunications Association and AT&T had requested, but only six months to comply with accessibility requirements. NCTA had argued that most EAS participants are already generally compliant with accessibility proposals. In a Report and Order, the FCC said the goal was to update the alerts, which are carried on broadcast, cable and other media, as network evolve to next gen technology. The heart of the lengthy order, which stems in part from lessons learned in the first nationwide EAS test back in November 2011, includes:

Adopting six zeroes (000000) as the national location code.
Requiring all EAS participants, which include broadcasters and cable operators, to have equipment capable of processing a " National Periodic Test (NPT) event code for future nationwide EAS tests."
Requiring participants to file test data in an Electronic Test Report System (ETRS) the FCC says is designed to be "minimally burdensome."
Requiring participants to comply with minimum accessibility rules to make sure the EAS alerts are accessible to people with disabilities.

Why Online Harassment Is Still Ruining Lives -- And How We Can Stop It

In 2010, Anthony Elonis threatened his estranged wife by writing rants on his Facebook page such as, "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." For making these threats, a federal district court sentenced him to more than three years in prison. On June 1, the Supreme Court voided that conviction, explaining that the standard the court had used to judge whether Elonis's threats were "true threats" was not sufficient. The district court had asked jurors to consider only whether the threats would cause a reasonable person to be afraid. Chief Justice Roberts wrote that juries should also consider whether the defendant intended to make a true threat.

The ruling will make it more difficult than ever to prosecute the authors of online death and rape threats. But for people disappointed by that decision, there was one promising aspect to the ruling, and it has more to do with what the court didn’t say than what it did: "It implicitly suggests that threats online are no different [than threats made via other interstate communication methods]," said Danielle Citron, a law professor at the University of Maryland who has studied online harassment since 2007. "The Court was invited to address that question, and declined." By not drawing a distinction between threats made online and threats made in other ways, the court implied that both should be handled the same way.

State Department Needs a Science and Technology Tune Up, Report Says

Science and technology remain undervalued in the State Department despite their increasingly important role in diplomacy, according to a National Research Council report. The two disciplines have a growing influence on everything from international economic development to combating hostile governments, so they should also play a key role in US foreign policy decisions, according to the report. The State Department needs a cultural tune up, according to the report.

Knowledge of science and technology should be considered just as important as language fluency and area knowledge. "The department should accelerate its efforts to engrain within the Foreign Service an appreciation of the significance of the S&T advances taking place at home and abroad," the report stated. The report included 27 recommendations for the State Department, including creating a science and technology advisory board of independent field experts and increasing staff. Also among the recommendations: Placing special tech counselors at those embassies where science and technology play especially important roles in diplomacy, and expanding and assessing the department's social media presence.

Public Knowledge Acknowledges Improvement in GOP Transparency Bills

Transparency in Federal Communications Commission proceedings is an important value that must be balanced with other concerns, such as the ability to have open dialogue and negotiation among commissioners, and the ability of the FCC Chairman Tom Wheeler to move a proceeding to a final vote without creating an endless loop of notice and comments. We appreciate House Communications Subcommittee Chairman Walden’s (R-OR) willingness to listen to our concerns and that he and Rep Adm Kinzinger (R-IL), who originally introduced this amendment, included edits to address some unintended consequences.

The bill as reported still meets the goal of sharing language with all stakeholders but does so without granting legal standing to any publication of circulated orders. Removal of the "good faith" standard for changes after publication also preserves the ability for commissioners to negotiate and alter language up to the final vote without fear of legal challenge. That is a significant improvement. Ultimately, this is a bill about process, and few government processes are wholly perfect. We still believe that this bill, although less concerning than before, remains unnecessary. The current FCC Chairman has demonstrated well how, when the Administrative Procedures Act is adhered to faithfully, the public can have adequate time to comment and influence the outcome. We appreciate the House Commerce Committee Majority team’s collaboration and look forward to working with Congress on this issue.

House panel approves FCC transparency bill

A House panel passed a bill aimed at making the Federal Communications Commission more transparent over the objections of Democratic Representatives who opposed a trio of Republican Representative amendments on what was originally a bipartisan measure. The FCC Process Reform Act was approved by the House Commerce committee through a voice vote.

The bill institutes reforms to the way the FCC goes about its business and comes after the FCC handed down its controversial network neutrality rules. Republican Representatives added three amendments based on bills they proposed when the reform bill was first considered by the Communications Subcommittee. One, from Rep Adam Kinzinger (R-IL), requires that the FCC publish the text of any rule or other action no later than 24 hours after the Chairman circulates them to the Commissioners. Another requires the FCC to publish a description of any order completed at the bureau level. Rep Renee Ellmers (R-NC) proposed an amendment that would require the Commission to publish changes to its rules.

The FCC Just Made It Easier to Raise Your Cable Rates

The Federal Communications Commission has quietly approved a proposal that could make it easier for major cable providers like Comcast to raise prices. The decision is a rare win at the FCC for the cable industry, which has suffered a series of losses on network neutrality and other major issues under FCC Chairman Tom Wheeler, himself a former cable lobbyist. The FCC voted 3-to-2 to limit the power of state and local regulators over cable TV packages and prices, according to agency officials. The agency declared that it will assume that there is "effective competition" for cable services nationwide.

FCC Chairman Tom Wheeler won support from the commission's two Republicans, but the two other Democrats opposed the decision, officials said. It is extremely unusual for an FCC chairman to side against the commissioners in his own party. A spokesperson for Chairman Wheeler declined to comment on the decision, which has not yet been made public. A number of top congressional Democrats had urged Chairman Wheeler not to loosen the regulations on major cable companies, warning it could lead to higher prices for consumers to get access to news, sports, weather, and other programming.

NCTA's Big Guns Weigh in on Title II

The National Cable & Telecommunications Association's high-powered lawyers told reporters they were confident the Federal Communications Commission's Title II reclassification of the Internet would be overturned by the court, and that could happen with the baseline, bright-line rules remaining in effect. That came in a meeting with reporters featuring NCTA president Michael Powell, former solicitor general Ted Olson and former Supreme Court nominee Miguel Estrada. Olson and Estrada tore into the FCC, saying it was trying to write new law, change policy without justification or notice, and otherwise run roughshod over the Congress, communications law and the Administrative Procedures Act, which set out the rules for how agencies regulate, with prohibitions on arbitrary and capricious decision making. They argued the cable and telecommunication companies legal challenge was high stakes, and one of the most important challenges -- the term "monumental" was used -- to regulatory authority ever, given that it deals with the Internet's future.

Olson talked of a suffocating FCC whose heavy hand of regulation would "stifle and strangle" innovation and investment. They said that the FCC switched from a Sec. 706 based approach that had talked about Title II in only two graphs, and even then only as a backstop, its own version of Title II for the 21st Century, with 128 graphs outlining it. That, they said, did not square with APA guidelines that the public must be given notice of what the FCC is actually planning to do, and allowed to comment on it. They did not use the term bait and switch, but the suggestion was the FCC had signaled one thing, and done something entirely different without sufficient notice of the change.

Benton

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