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February 2016

Unlocking Opportunities for Video Programmers of Color

[Commentary] The Oscars' failure to recognize Black and Latino talent proves, once again, a troubling fact we know all too well: People of color face persistent challenges in convincing industry gatekeepers to produce, distribute and recognize their work. This is why finding new ways to make diverse content available to a greater number of people is essential to ensuring that communities of color are heard and able to tell their own stories, in their own voices, without first seeking permission of any middle man. At its Feb. 18 meeting, the Federal Communications Commission launched a proceeding to consider new rules that would allow third-party set-top boxes to securely access and display our cable programming -- unlocking our cable boxes from the clutches of our cable providers. This could help create a more vibrant media system that would better serve communities of color -- and give diverse content creators a better shot at connecting with their audiences.

[Joe Torres is senior external affairs director at Free Press. Michael Scurato is vice president of policy at the National Hispanic Media Coalition]

FCC’s Media Bureau Announces Front Office Staff Appointments

Federal Communications Commission Media Bureau Chief Bill Lake announced the appointments of Mary Beth Murphy and Hillary DeNigro to the Bureau’s front office staff. Murphy will serve as Deputy Bureau Chief, replacing Sarah Whitesell who left the Commission for the non-profit sector. DeNigro will serve as Associate Bureau Chief.

Mary Beth Murphy began her FCC career in the Administrative Law Division of the General Counsel’s office. She later served as Special Counsel to General Counsel Christopher Wright and Acting Legal Advisor to Chairman William Kennard. Before becoming the Media Bureau’s Policy Division Chief in 2002, Murphy was Chief of the Policy and Rules Division of the Mass Media Bureau. In 2011, she received the Gold Medal Award for Distinguished Service. Murphy was a litigator at Steptoe & Johnson before joining the Commission and also served as a law clerk to the Honorable Marvin Katz of the US District Court for the Eastern District of Pennsylvania. She is a graduate of the University of Michigan Law School and Georgetown University. Hillary DeNigro joined the Commission in the Enforcement Bureau, bringing with her substantial experience as a litigator from Milbank, Tweed, Hadley & McCloy and prior to that, Akin, Gump, Strauss, Hauer & Feld. She was Chief of EB’s Investigations and Hearings Division, in addition to serving in a variety of other roles. In 2011, DeNigro came to the Media Bureau, serving as Chief of its Industry Analysis Division. She received her J.D. magna cum laude from Georgetown University Law Center and a BA Phi Beta Kappa from Emory University.

Data Broker Defendants Settle FTC Charges They Sold Sensitive Personal Information to Scammers

A group of defendants have settled Federal Trade Commission charges that they knowingly provided scammers with hundreds of thousands of consumers’ sensitive personal information – including Social Security and bank account numbers. The proposed federal court orders prohibit John Ayers, LeapLab and Leads Company from selling or transferring sensitive personal information about consumers to third parties. The defendants will also be prohibited from misleading consumers about the terms of a loan offer or the likelihood of getting a loan. In addition, the settlements require the defendants to destroy any consumer data in their possession within 30 days. The orders include a $5.7 million monetary judgment, which is suspended based on the defendants sworn inability to pay. In addition to the settlement orders, the court entered an unsuspended $4.1 million default judgment with similar prohibitions against SiteSearch, the remaining defendant in the case.

Apple is selling you a phone, not civil liberties

[Commentary] Unless you’ve been living in a cave, you already know by now that a federal magistrate judge in California has issued an order to compel the technology giant to provide technical assistance to the FBI in unlocking the iPhone of one of the San Bernardino (CA) mass shooters. We will leave for another day the question of whether a multinational corporation with shareholders and customers worldwide and production in China, is meaningfully capable of patriotism, let alone love. In this post, however, we want to make an argument: Apple is being mischievous here, and the company’s self-presentation as crusading on behalf of the privacy of its customers is largely self-congratulatory nonsense. In reality, the case poses starkly the stakes in the “Going Dark” debate. What’s more, it was entirely predictable; indeed, one of us predicted it with some precision barely a month ago.

Far from the “unprecedented” “overreach” of Apple’s rhetoric, given the uncertain state of the law and the stakes in the case in question, it would have been akin to malpractice for the FBI and Justice Department to not fully explore the scope of Apple’s obligation to help the government effectuate a warrant in a major ISIS case. More particularly, given the company’s simultaneous opposition to any legislation to clarify industry obligations as companies implement stronger encryption systems and its insistence that current law cannot force it to help the government, we submit that Apple is really trying to carve out a zone of impunity for itself that rightly alarms the government and should alarm the very citizens the company (which calls these citizens “customers”) purports to represent. The company’s near-duplicitous posture thus highlights the urgent need for a legislative intervention spelling out who has what obligations in situations like this one, situations that will only grow more common in the coming months and years.

The Conscription of Apple's Software Engineers

When software engineers at Apple designed the iPhone’s security features, they labored knowing that millions were relying on them to safeguard their privacy. Insofar as their efforts succeeded, they would stymie spying by jealous exes; stop hackers from emptying bank accounts; prevent blackmailers from stealing nude photos; and thwart authoritarian governments from identifying dissidents. On Feb 16, a federal judge ordered Apple to write malware to load onto the dead terrorist’s phone, so that the FBI can keep guessing new codes electronically, forcing entry without causing the device to delete all the data that it contains. Apple CEO Tim Cook aptly summed up the situation: “The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe,” he declared.

A federal judge is effectively ordering these unnamed people to write code that would indisputably harm their company and that would, in their view, harm America. They are being conscripted to take actions that they believe to be immoral, that would breach the trust of millions, and that could harm countless innocents. They have been ordered to do intellectual labor that violates their consciences. That may be commonplace in authoritarian countries, but liberal democracies ought to avoid doing the same out of an aversion to transgressing against core freedoms. The order could set a sweeping precedent if it stands.

What Tim Cook doesn't want to admit about iPhones and encryption

When Hillary Clinton called for a "Manhattan-like project" to find a way for the government to spy on criminals without undermining the security of everyone else's communications, the technology world responded with mockery."Also we can create magical ponies who burp ice cream while we're at it," snarked prominent Silicon Valley investor Marc Andreessen. Clinton's idea "makes no sense," added Techdirt's Mike Masnick, because "backdooring encryption means that everyone is more exposed to everyone, including malicious hackers." It's an argument that's been echoed by Apple CEO Tim Cook, who is currently waging a legal battle with the FBI over its request to unlock the iPhone of San Bernardino (CA) terrorism suspect Syed Rizwan Farook. "You can’t have a backdoor that’s only for the good guys," Cook said in November. There's just one problem: This isn't actually true, and the fight over Farook's iPhone proves it.

Apple has tacitly admitted that it can modify the software on Farook's iPhone to give the FBI access without damaging the security of anyone else's iPhone. Claiming that secure back doors are technically impossible is politically convenient. It allows big technology companies like Apple to say that they'd love to help law enforcement but don't know how to do it without also helping criminals and hackers. But now, faced with a case where Apple clearly can help law enforcement, Cook is in the awkward position of arguing that it shouldn't be required to.

How the Internet has democratized democracy, to Bernie Sanders’s benefit

The extent to which the Internet is powering 2016's outsider candidacies is the subject of two thoughtful explorations, one at the New Yorker and one on Twitter.

The Twitter one was offered by Clay Shirky, a writer who looks at how the Internet is affecting society. It's long, but the gist is this. The two-party system necessarily can't encompass every viewpoint. So, to hold parties together, some things became unmentionable. As media options broadened and the press wasn't acting as gatekeeper, candidates could talk to voters more directly. But they still largely needed the resources of the party in order to get elected, so they still hewed to the rules about what couldn't be mentioned. But the idea that the Internet has democratized democracy seems unavoidably correct. We've noted before that Donald Trump and Sen Bernie Sanders (I-VT) can ignore the established parties by talking directly to the voters (in ways that reflect their core politics). Shirky puts it into historical context.

As does Jill Lepore at the New Yorker. Lepore, a historian, notes the inescapability of the Internet on the campaign trail. Lepore argues that the two-party system itself was a creation of the press, American newspapers having black-or-white political arguments embedded in their DNA from birth. Each time a new way of reaching out to voters emerged, the political system reoriented itself. "When the press is in the throes of change," she writes, "so is the party system." We are now in the sixth iteration of the American political party system, and as Shirky makes obvious, it's not clear how it will evolve.

Study: TV works best for political ads

It’s no wonder the bulk of political ads’ spending goes to TV–it remains the most influential medium when it comes to voting behavior among all age groups and political affiliations. That’s according to a political marketing study from Kelly Scott Madison, which asked respondents to weigh in on how effective various media are in influencing their voting behavior.

TV came out on top across the board, with 38 percent of Millennials saying it’s extremely or very effective, along with 25 percent of Gen Xers (35-50s), 19 percent of Boomers (51-69), 30 percent of Democrats, 26 percent of Independents and 25 percent of Republicans. One somewhat surprising finding: print newspaper and magazine ads remain fairly effective among all groups, despite those media’s recent struggles. Print was the No. 2 medium among Gen Xers (22 percent saying extremely or very effective), Boomers (18 percent), Democrats (27 percent), Independents (20 percent) and Republicans (21 percent). Millennials placed print at No. 4, although a healthy 29 percent in that group said print ads are extremely or very effective.

T-Mobile: 39 Months, $1.75 Billion Plenty for Repack

The wireless carrier, which is expected to bid for spectrum in the Federal Communications Commission's spectrum auction, says that there are no grounds for National Association of Broadcaster's request for more time and money to move to new channels in the post-auction repacking of the TV band. According to its study, the carrier says, the current deadline (39 months) and reimbursement fund ($1.75 billion) are more than enough.

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