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  2. November 2015

November 2015

Cross-Device Tracking Creates New Level of Privacy Concerns, FTC Says

A Federal Trade Commission workshop that tackled privacy amid tracking consumers across devices suggested that regulators are struggling to keep up with emerging marketing tech.

"While tracking itself is not new, the ways in which data is collected, compiled stored and analyzed certainly is," FTC Chairwoman Edith Ramirez said at the workshop, which gathered usual suspects such as technologists, ad industry trade group representatives and privacy wonks. Consumers are no longer only monitored and followed as they surf the web on desktop computers. Now opening a mobile app, watching TV via a set-top box, browsing the internet and even standing near a digital sign in an airport can all create data streams. Companies, some of them software firms helping marketers better track and understand their consumers, are gathering increasing volumes of online and offline data at greater rates than ever with the ultimate goal of linking it back to individual consumers.

"They do this under the veil of anonymous identifiers and hashed P.I.I. [personally-identifiable information], but these identifiers are still persistent and can provide a strong link to the same individual online and offline," Chairwoman Ramirez said, in language that challenges the typical rhetoric from companies that track consumers.

FCC Commissioner Pai Pans Overcomplicated USF Reform Plans

Federal Communications Commissioner Ajit Pai said he is not confident the FCC can keep its pledge to Congress to deal with the issue of subsidizing stand-alone rural broadband by the end of 2015.

Currently, the FCC's Universal Service Fund subsidizes traditional telephone service in rural areas, but not broadband-only service, which works against its goal of transitioning phone subsidies to broadband more broadly.

In a speech to an NTCA – The Rural Broadband Association policy conference in Washington, Commissioner Pai said that "[t]hrough a quirk of regulatory history, our rules governing small, rural carriers continue to provide universal service support only to networks that supply telephone service, not stand-alone broadband service. That regulatory system has increasingly come under strain as consumers flee landlines in favor of wireless and Internet-based (or 'over-the-top') alternatives." He said rural carriers are not investing for fear they can't migrate to deploying the next generation services their customers want or they will lose the Universal Service funding they need.

Herring 'Modifies' Charter Deal Support at FCC

Herring Networks (Wealth TV, America One Network), which in September told the Federal Communications Commission it supported the Charter/Time Warner Cable/Bright House Networks merger, is having second thoughts, mainly over the hot-button issue of over-the-top distribution.

In a Sept. 16 filing, the company said Charter has over several years "demonstrated a pattern and practice of extending fair carriage consideration to independent programming services." It went further, saying it was in regular conversation with almost all other independent networks and has "not heard of any formal or informal complaints" against Charter. "That record should speak volumes about the character and approach of the company when it comes to relations with independents, who typically lack the heft, scale, and negotiating leverage of larger programming entities," said Charles Herring, president of Herring Networks in that September filing. But in recent meetings with Gigi Sohn, chief counselor to FCC Chairman Tom Wheeler, and other FCC officials, Herring said he had a host of issues with how Charter was treating its two independent networks (Wealth TV and One America News Network [AONN]) and that "based on its recent dealings with Charter, it is reasonable and credible for Herring Networks to modify its assessment of the Charter - TWC merger." Herring offered a rather different assessment of Charter's "fundamental lack of respect for independent programmers." Herring said that he had tried to negotiate an anticompetitive clause out of its existing programming contract with Charter, that is says "contractually prevents Herring Networks, Inc. from exhibiting its linear feed of AWE (WealthTV) to over the top (“OTT”) devices and streaming services."

OPM, DHS, White House Declined to Brief House Armed Services Panel on Historic Hack

The Office of Personnel Management, Department of Homeland Security and White House backed out of a closed-door congressional briefing on the OPM hack at the eleventh hour, according to House Armed Services Committee Chairman Mac Thornberry (R-TX).

The agencies declined to testify at the Tuesday classified session, according to the committee, because the conversation would have been documented. “OPM, Homeland Security and OMB’s last-minute refusal to appear before this committee is unacceptable," said Chairman Thornberry. "There is no excuse at all for being unwilling to explain on the record about how the breach happened and what we are doing to prevent another one. What could they possibly have to hide?"

What We Know and Don’t Know About How the Paris Attackers Communicated

There’s been a lot of inaccurate reporting on how the terrorists carried out the attacks in Paris, such as whether or not they used encrypted communication and if that involved use of Facebook’s WhatsApp or Sony’s PlayStation.

  • What We Know: Very little. Aside from some reporting containing thinly sourced information, we know practically nothing from reliable sources about how the attackers communicated. The New York Times initially cited WhatsApp when describing how the attackers may have communicated, but that report has since been revised. The Times now says it’s unclear if encryption was employed at all by the attackers. The Times’ story also was changed to cite WhatsApp as part of a comment made by a Belgian official days before the Paris attacks. More facts will no doubt emerge as the investigation progresses.
  • What We Don’t Know: Whether the attackers used WhatsApp or PlayStation or any other digital communication. For now, this part of the story appears to be false and can be tracked to two threads. First, there were reports that attackers may have used the PS4’s chat services to communicate and coordinate their plans. Second, news reports started picking up comments made by a Belgian law enforcement official, a few days before the attacks, who said, “Playstation 4 is even more difficult to keep track of than WhatsApp.” The story was further fueled by this story at Forbes, which has since been corrected.

Comcast’s usage-based pricing memo: Much ado about nothing

[Commentary] Comcast has acknowledged a pricing strategy that it disclosed years ago, and seeks to dispel misconceptions about this practice with explanations that are consistent with its earlier guidance. Network neutrality activists may prefer flat-rate pricing strategies under which lighter users effectively subsidize heavier users. This may come as no surprise, especially if many such advocates fall on the “heavy Internet usage” side of the spectrum. But the rest of us may think that charging more to those who use more is a fairer way to spread network costs. And absent evidence of anticompetitive abuse, Comcast should be free to test pricing strategies that reflect this intuition.

Negotiating a new framework for transatlantic data flows

On November 16, the Center for Technology Innovation (CTI) at Brookings hosted Věra Jourová, the European Commissioner for Justice, Consumers and Gender Equality.

CTI visiting fellow Cameron Kerry joined her for a discussion on how to best negotiate and implement a new framework for trans-Atlantic data flows, given that the previous U.S.-EU Safe Harbor Framework was invalidated on October 6 by the Court of Justice of the European Union. Attitudes toward privacy issues are in a continuous state of evolution, especially given the recent terrorist attacks in Paris. The intricate legal frameworks within both the U.S. and the EU also provide challenges to quickly achieving a long-term solution. To reach a lasting agreement on data transfers, the U.S. and the EU must address issues of privacy, security, and economic opportunity at the same time. Commissioner Jourová stated that “All these need to go hand in hand. We cannot have a trade-off between one and the other.” Indeed, the same protections given to data transferred in a law enforcement context should also extend to data shared in a commercial transaction.

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