February 2016

Cases like the one between the FBI and Apple are usually held under seal in national security courts like the Foreign Intelligence Surveillance Act (FISA) courts, so the public never knows about the proceedings and outcomes, points out Peter Y. Fu, an attorney in the cyber risk management group at Cooper Levenson in Atlantic City (NJ). But the court in which the FBI won its order is a public court — a federal district court in the Central District of California.

Some of the records in the case remain under seal, but the order regarding Apple is public record, as are the briefs and motions that came afterward. So the media, as it does around everything involving Apple, has swarmed over every detail. The court order has dominated headlines in the last week. In sealed cases, the attorneys on both sides are afforded the chance to hash out an agreement in private. Had the current case been kept under seal, Apple may have been more willing to create a one-time hardware or software key to unlock Farook's iPhone. The knowledge that such a key existed would never have been made public, could never have been known to cyber thieves and other bad actors. It's also possible that Apple rejected that request weeks ago, and only then did the FBI seek an order in a public court. Either way, the FBI's choice of court was a surprise. "They went nuclear pretty quickly," Fu said.

A House committee will consider a bill the week of Feb 22 that makes permanent small-business exemptions to some of the aspects of 2015’s landmark network neutrality rules. The full House Energy and Commerce Committee will vote Feb 24 on the bill, which passed out of its Subcommittee on Communications and Technology earlier in Feb. The bill permanently exempts small businesses from stricter transparency rules applied to Internet service providers under the network neutrality rules the Federal Communications Commission approved in 2015. The bill defines a small business as a provider that has 1,500 or fewer employees or one that has no more than 500,000 subscribers. The exemptions are currently temporary.

Some have raised concerns that the definition is too broad. “For example, one rural advocacy group representing small telecommunications providers has, on average, 4,000 access lines and 34 employees per member company,” said Ranking Member Anna Eshoo (D-CA). Next week is also expected to see lawmakers consider a bill with implications for tech and telecommunications. Senate Commerce Committee Chairman John Thune (R-SD) said that he hopes the panel will vote on his MOBILE NOW Act — which implements reforms to spectrum policy — in March.

The FCC initiated a proceeding to review special access competition way back in 2012 for which it gathered a huge amount of data from incumbent local exchange carriers (ILECs), competitive local exchange carriers (CLECs) and others (a whopping 120 million records making up more than 15 Gigabytes of data). After reviewing this data, late in Feb interested parties submitted economic analyses about the state of competition in the special access marketplace. Pursuant to a Commission edict issued on the eve of the filing deadline, commenters were instructed that they could not include in the public versions of their comments any aggregate statistics that were derived from the data submitted in this proceeding without first receiving the Commission’s affirmative permission. As a result of this FCC action, only the FCC and outside counsel and consultants are allowed to see any of the calculations derived from the FCC’s data collection, including aggregated results that reveal no one’s confidential information.

The outcome of the Special Access proceeding has huge implications – it will significantly impact telecommunications infrastructure investment for the foreseeable future. Heavy-handed, monopoly-era regulation will result in fewer infrastructure jobs, slow the roll-out of new, fiber-based broadband services and faster speeds, and delay all the positive economic and social benefits those products and speeds will create. So c’mon FCC, take your thumb off the scale so that we can have a fair and transparent fact-based discussion here.

[Commentary] Both the media and governments were empowered by the world of information scarcity. The rise of digital technology-enabled actors such as ISIS challenges the control of media that states once held exclusively during war. The distributed and disruptive nature of digital actors makes them tremendously difficult for hierarchical organizations such as states to counteract. The things that the state would need to do to shut them down would also harm a wide range of legitimate online activity, and run counter to the principles that drive Silicon Valley. Thus a 21st century state needs to be confident enough to give up some control in order to be a constructive player in the new digital world.Three Challenges:
1. The distributed and disruptive nature of emergent digital actors makes them tremendously difficult for hierarchical organizations such as states to counteract.
2. Many of the things that states would need to do to shut down perceived nefarious digital actors (undermine encryption, expand government surveillance, etc.) would also harm a wide range of legitimate online activity and run counter to democratic principles that give states their legitimacy.
3. The current international institutional governance model (UN, ICC, Bretton Woods Institutions) was built by those who held power in the 20th century (states, multinational organizations, etc.). This is therefore disconnected from the groups and networks that increasingly have power now.

[Taylor Owen is an Assistant Professor of Digital Media & Global Affairs at the University of British Columbia]